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SOCIAL  ACTION  SERIES  III. 


THE  STATE  AND  THE  CHURCH 


jrt^g^ 


THE    MACMILLAN    COMPANY 

mw  YORK    •    BOSTON    •    CHICAGO    •    DALLAS 
ATLANTA    •    SAN  FRANCISCO 

MACMILLAN  &  CO.,  Limited 

LONDON    •    BOMBAY    •    CALCUTTA 
MELBOURNE 

THE  MACMILLAN  CO.  OP  CANADA.  Ltd. 

TORONTO 


THE 
STATE   AND   THE   CHURCH 


WRITTEN   AND   EDITED   FOR 

THE  DEPARTMENT  OF  SOCIAL  ACTION  OF  THE 
NATIONAL       CATHOLIC       WELFARE       COUNCIL 

BY 

JOHN  A.-^RYAN,  D.D.,  LL.D. 

Professor  of  Moral  TMology  at  the  Catholic  University 
of  America.    Author  of  "A  Living  Wage,"   "Distrib- 
utive Justice,"  "Social  Reconstruction,"  etc.,  etc. 

AND 

MOORHOUSE  F.  X.  MILLAR,  S.J. 


i^ebj  Pork 

THE  MACMILLAN  COMPANY 
1922 

All  rights  reserved 


Printed  in  the  United  States  of  America 


Copyright,  1922. 
By  THE  NATIONAL  CATHOLIC  WELFARE  COUNCIL 


Set  up  and  printed.    Published  May,  1922 


Niljtl  (Dbstat- 

ARTHURUS  J.  SCANLAN,  S.T.D. 

Censor  Librorum. 

Jmprtmalur. 

t^  PATRITIUS   J.   HAYES,   D.D., 

Archiepiscopus  Neo-Ehoraci. 

New  York,  February  21st,  1922 


SOCIAL  ACTION  SERIES 

This  series  will  comprise  several  volumes  pre- 
senting the  Catholic  teaching  on  the  important  so- 
cial and  industrial  prohlems  of  the  day.  The 
following  are  now  ready:  "  The  Church  and 
Labor,"  by  Rev.  John  A.  'Ryan  and  Rev.  Joseph 
Husslein,  S.J. ;  ''The  Social  Mission  of  Charity," 
by  Rev.  William  J.  Kerby;  "The  State  and  the 
Church,"  by  Rev.  John  A.  Ryan  and  Rev.  Moor- 
house,  F.  X.  Millar,  S.J.  Other  volumes  will  be 
published  from  time  to  time,  according  as  the  need 
for  them  becomes  manifest  and  competent  writers 
can  be  obtained  to  prepare  them. 


PREFACE 

This  work  endeavors  to  set  forth  the  teaching  of  the  Catholic 
Church  concerning  the  State.  In  the  first  chapter  will  be 
found  the  most  authoritative  doctrine  that  we  possess  regarding 
the  nature,  authority,  and  object  of  the  State,  and  the  relations 
that  should  subsist  between  the  State  and  the  Church.  Prac- 
tically all  the  rest  of  the  book  is  devoted  to  the  development 
and  specific  application  of  these  general  principles.  The 
second  chapter  discusses  certain  declarations  of  the  first  which 
have  been  the  subject  of  more  or  less  controversy.  Chapters 
III  and  IV  present  a  comprehensive  treatment  and  defens'e 
of  the  doctrine  that  governments  and  rulers  derive  their  moral 
authority  from  God  through  the  people.  The  development  of 
this  doctrine  in  Catholic  political  theory,  and  its  bearing  upon 
modern  democratic  theory,  are  treated  at  length  in  the  next 
three  chapters.  It  is  believed  that  these  three  chapters  constitute 
a  distinct  contribution  to  the  history  of  American  political 
principles.  The  remaining  chapters  deal  mainly  with  the  purpose 
and  scope  of  the  State  and  the  ethical  relations  existing  between 
it  and  the  citizen. 

We  have  attempted  to  furnish  a  substantially  adequate  dis- 
cussion of  all  the  religious  and  moral  aspects  of  the  State. 
We  have  tried  to  answer  the  following  and  kindred  questions: 
What  is  the  State  ?  What  is  its  relation  to  the  Church  ?  What 
is  the  ethical  basis  of  government?  Whence  do  civil  rulers 
obtain  their  moral  right  to  rule?  Do  governments  "derive 
their  just  powers  from  the  consent  of  the  governed?"  Is  the 
genesis  of  American  democratic  principles  to  be  found  in  the 
rationalistic  philosophy  of  eighteenth  century  France,  or  in  the 
traditional  teaching  of  Christianity?  Does  the  individual  exist 
for  the  State,  or  the  State  for  the  individual  ?  Should  the  State 
be  merely  a  limited  policeman  ?  or  a  universal  provider  of  every 


vi  PREFACE 

good'  thing?  or  something  between  these  extremes?  Are  the 
ordinancea  of  the  State  merely  civic  counsels  with  the  inter- 
mittent sanction  of  physical  force,  or  are  they  true  moral  laws? 
What  are  the  duties  and  what  are  the  rights  of  the  individual 
citizen?  What  is  the  normal  Catholic  attitude  toward  the 
American  State  and  American  political  institutions?  What  is 
the  rational  meaning  of  patriotism?  What  manner  of  spirit 
must  animate  the  nations  if  they  would  restore  and  preserve 
international  peace  ? 

The  general  importance  and  the  peculiar  timeliness  of  these 
questions  need  no  elaboration  of  statement.  Whenever  possible, 
the  answers  have  been  drawn  directly  from  the  teaching  of 
Popes,  Bishops,  and  theologians.  When  these  sources  did  not 
provide  sufficiently  specific  answers,  we  have  had  recourse  to 
lesser  authorities,  or  have  made  our  own  interpretation  and 
application  of  the  traditional  and  authoritative  doctrine 

January  6,  1922. 

John  A.  Ryan. 
MooBHOusE  F.  X.  Millar,  S.J. 


CONTENTS 

Chapter  Page 

Preface "▼ 

I.     The  Christian  Constitution  of  States  ...  1 

Encyclical  by  Pope  Leo  XIII 
11.     Comments  on  the  '*  Christian  Constitution  of 

States  " 26-61 

By  Rev.  John  A.  Ryan,  D.D. 

The  Moral  Authority  of  Governments  ...  26 

Various  Forms  of  Government 28 

Public  Profession  of  Religion  by  the  State      .  29 

Attitude  of  the  State  toward  the  Church   .      .  32 

Comparative  Dignity  of  Church  and  State     .  39 

The  Church  as  Civil  Ruler 41 

The  Independence  of  the  State 42 

The  Question  of  Joint  Jurisdiction     ...  49 

Concordats    .          52 

Rights  of  the  Church  Denied  by  Many  States  .  52 

The  Sovereignty  of  the  People 53 

Freedom  of  Speech  and  Writing    ....  55 

"  Intolerance  "  in  the  Syllabus     ....  58 

Public  Protection  for  all  Forms  of  Religion   .  60 

Catholic  Participation  in  Political  Affairs    .  60 

III.  The  Moral  Origin  of  Civil  Authority  ...  62 

By  Louis  Cardinal  Billot,  S.J. 

IV.  Sovereignty  and  Consent 68 

By  Charles  B.  Macksey,  S.J. 
V.     The     History     and     Development     of     the 
Democratic  Theory  of  Government  in 

Christian  Tradition 99 

By  Rev.  Moorhouse  F.  X.  Millar,  S.J. 
VI.     Modern    "  Practical    Liberty  "    and    Common 

Sense 145 

By  Rev.  Moorhouse  F.  X.  Millar,  S.J. 

VII.     Our  Medieval  Inheritance  of  Liberty  .      .      .  166 
By  Rev.  Moorhouse  F.  X.  Millar,  S.J. 


CONTENTS 

VIII.     The  End  of  the  State 195 

By  Rev.  John  A.  Ryan,  D.D. 
IX.     Erroneous  Theories  Concerning  the  Functions 

OF  THE  State 208-220 

By  Rev.  John  A.  Ryan,  D.D. 

Individualistic    Theory 208 

Socialist    Theory 217 

X.     The  Proper  Functions  of  the  State  .      .       221-223 
By  Rev.  John  A.  Ryan,  D.D. 

Primary     Functions 224 

Secondary  Functions 226 

XI.     Lavv^  and  Liberty 234 

Extracts  from  Encyclical  by  Pope  Leo  XIII 
XII.     The  Moral  Obligations  of  Civil  Law  .      .       244-260 
By  Rev.  John  A.  Ryan,  D.D. 
Civil   Law   Based    on   Natural   Law    .      .      .   245 
Civil   Laws  of  Grave   Obligation    ....   248 

The  Intention  of  the  Legislator 249 

Purely  Penal  Laws 253 

Popular  Acceptance 256 

XIII.  The  Duties  of  the  Citizen 260 

By  Rev.  John  A.  Ryan,  D.D. 

XIV.  The  Rights  of  the  Citizen 276 

By  Rev.  John  A.  Ryan,  D.D. 

XV.  Catholicism  and  Americanism 282 

By  Most  Rev.  John  Ireland,  D.D. 

XVI.     Patriotism 299 

By  Most  Rev.  John  Lancaster  Spalding,  D.D. 
XVII.     Encyclical  on  International  Reconciliation  .   309 

By  Pope  Benedict  XV 
XVIII.     National  and  International  Relations  .       318-325 
Extracts    from    Pastoral    Letter    of    American 
Hierarchy 

National  Conditions 318 

Care  for  Immigrants 319 

Clean  Politics 320 

Public  Office  and  Legislation 321 

International  Relations 322 


STATE  AND  CHURCH 

1.     THE  CHRISTIAN  CONSTITUTION  OF  STATES 

Encyclical  Letter  Immortale  Dei,  November  1,  1885 

By  Pope  Leo  XIII 

The  Catholic  Church,  that  imperishable  handiwork  of  our 
all-merciful  God,  has  for  her  immediate  and  natural  purpose 
saving  souls  and  securing  our  happiness  in  Heaven. 
Yet  in  regard  to  things  temporal  she  is  the  source  of  benefits 
as  manifold  and  great  as  if  the  chief  end  of  her  existence 
were  to  ensure  the  prospering  of  our  earthly  life.  And  in 
truth,  wherever  the  Church  has  set  her  foot,  she  has  straight- 
way changed  the  face  of  things,  and  has  attempered  the  moral 
tone  of  the  people  with  a  new  civilization,  and  with  virtues 
before  unknown.  All  nations  which  have  yielded  to  her  sway 
have  become  eminent  for  their  culture,  their  sense  of  justice, 
and  the  glory  of  their  high  deeds. 

And  yet  a  hackneyed^  reproach  of  old  date  is  levelled  against 
her,  that  the  Church  is  opposed  to  the  rightful  aims  of  the 
civil  government,  and  is  wholly  unable  to  afford  help  in  spread- 
ing that  welfare  and  progress  which  justly  and  naturally  are 
sought  after  by  every  well-regulated  State.  From  the  very 
beginning  Christians  were  harassed  by  slanderous  accusations 
of  this  nature,  and  on  that  account  were  held  up  to  hatred 
and  execration,  for  being  (so  they  were  called)  enemies  of 
the  empire.  The  Christian  religion  was  moreover  commonly 
charged  with  being  the  cause  of  the  calamities  that  so  frequently 
befell  the  State,  whereas,  in  very  truth,  just  punishment  was 
being  awarded  to  guilty  nations  by  an  avenging  God.     This 

1 


2  STATE  AND  CHURCH 

odious  calumny,  with  most  valid  reason,  nerved  the  genius  and 
sharpened  the  pen  of  St.  Augustine,  who,  notably  in  his  treatise 
On  the  City  of  God,  set  forth  in  so  bright  a  light  the  worth  of 
Christian  wisdom  in  its  relation  to  the  public  weal,  that  he 
seems  not  merely  to  have  pleaded  the  cause  of  the  Christians 
of  his  day,  but  to  have  refuted  for  all  future  times  impeach- 
ments so  grossly  contrary  to  truth.  The  wicked  proneness, 
however,  to  levy  the  like  charge.^  and  accusations  has  not  been 
lulled  to  rest.  Many,  indeed,  are  they  who  have  tried  to  work 
out  a  plan  of  civil  society  based  on  doctrines  other  than  those 
approved  by  the  Catholic  Church.  Nay,  in  these  latter  days 
a  novel  scheme  of  law  has  begun  here  and  there  to  gain  increase 
and  influence,  the  outcome,  as  it  is  maintained,  of  an  age  arrived 
at  full  stature,  and  the  result  of  liberty  in  evolution.  But 
though  endeavors  of  various  kinds  have  been  ventured  on,  it  is 
clear  that  no  better  mode  has  been  devised  for  building  up 
and  ruling  the  State  than  that  which  is  the  necessary  growth 
of  the  teachings  of  the  Grospel.  We  deem  it,  therefore,  of  the 
highest  moment,  and  a  istrict  duty  of  our  Apostolic  office,  to 
contrast  with  the  lessons  taught  by  Christ  the  novel  theories 
now  advanced  touching  the  State.  By  this  means  We  cherish 
hope  that  the  bright  shining  of  the  truth  may  scatter  the  mists 
of  error  and  doubt,  so  that  one  and  all  may  see  clearly  the 
imperious  law  of  life  which  they  are  bound  to  follow  and  obey. 
It  is  not  difficult  to  determine  what  would  be  the  form  and 
character  of  the  State  were  it  governed  according  to  the  prin- 
ciples of  Christian  philosophy.  Man's  natural  instinct  moves 
him  to  live  in  civil  society,  for  he  cannot,  if  dwelling  apart, 
provide  himself  with  the  necessary  requirements  of  life,  nor 
procure  the  means  of  developing  his  mental  and  moral  faculties. 
Hence  it  is  divinely  ordained  that  he  should  lead  his  life — 
be  it  family,  social,  or  civil — with  his  fellow -men,  amongst  whom 
alone  his  several  wants  can  be  adequately  supplied.  But  as  no 
society  can  hold  together  unless  some  one  be  over  all,  directing 
all  to  strive  earnestly  for  the  common  good;  every  civilized 
community  must  have  a  ruling  authority,  and  this  authority, 
no  less  than  society  itself,  has  its  source  in  nature,  and  has, 
consequently,   God   for  its  author.     Hence  it  follows  that  all 


THE  CHRISTIAN  CONSTITUTION  OF  STATES        3 

public  power  must  proceed  from  God.  For  God  alone  is  the 
true  and  supreme  Lord  of  the  world.  Everything,  without 
exception,  must  be  subject  to  Him,  and  must  serve  Him,  so  that 
whosoever  holds  the  right  to  govern,  holds  it  from  one  sole  and 
single  source,  namely,  God,  the  Sovereign  Ruler  of  all.^  There 
is  no  power  but  from  God.     (Rom.  xiii,  1.) 

The  right  to  rule  is  not  necessarily,  however,  bound  up  with 
any  special  mode  of  government.  It  may  take  this  or  that  form, 
provided  only  that  it  be  of  a  nature  to  insure  the  general 
welfare.^  But  whatever  be  the  nature  of  the  government,  rulers 
must  ever  bear  in  mind  that  God  is  the  paramount  ruler  of 
the  world,  and  must  set  Him  before  themselves  as  their  exemplar 
and  law  in  the  administration  of  the  State.  For,  in  things 
visible,  God  has  fashioned  secondary  causes,  in  which  His  divine 
action  can  in  some  wise  be  discerned,  leading  up  to  the  end  to 
which  the  course  of  the  world  is  ever  tending.  In  like  manner 
in  civil  society,  Grod  has  always  willed  that  there  should  he  a 
ruling  authority,  and  that  they  who  are  invested  with  it  should 
reflect  the  divine  power  and  providence  in  some  measure  over 
the  human  race. 

They,  therefore,  who  rule  should  rule  with  even-handed 
justice,  not  as  masters,  but  rather  as  fathers,  for  the  rule  of  God 
over  man  is  most  just,  and  is  tempered  always  with  a  father's 
kindness.  Government  should,  moreover,  be  administered  for 
the  well-being  of  the  citizens  because  they  who  govern  others 
posses®  authority  solely  for  the  welfare  of  the  State.  Further- 
more, the  civil  power  must  not  be  subservient  to  the  advantage 
of  any  one  individual  or  of  some  few  persons,  inasmuch  as  it 
was  established  for  the  common  good  of  all.  But  if  those  who 
are  in  authority  rule  unjustly,  if  they  govern  overbearingly  or 
arrogantly,  and  if  their  measures  prove  hurtful  to  the  people, 
they  must  remember  that  the  Almighty  will  one  day  bring  them 
to  account,  the  more  strictly  in  proportion  to  the  sacredness 
of  their  office  and  pre-eminence  of  their  dignity.  The  niigJity 
shall  he  mightily  tormsnted.  (Wisd.  vi,  7.)  Then  truly  will 
the  majesty  of  the  law  meet  with  the  dutiful  and  willing  homage 

'  See  Ch.  II,  a.  1. 
^SeeCh.  II,  s.  2. 


4  STATE  AND  CHURCH 

of  the  people,  when  they  are  convinced  that  their  rulers  hold 
authority  from  God,  and  feel  that  it  is  a  matter  of  justice  and 
duty  to  obey  them,  and  to  show  them  reverence  and  fealty, 
united  in  a  love  not  unlike  that  which  children  show  their 
parents.  Let  every  soul  he  subject  to  higher  powers.  (Rom. 
xiii,  1.)  To  despise  legitimate  authority,  in  whomsoever  vested, 
is  unlawful,  as  a  rebellion  against  the  Divine  will,  and  whoever 
resists  that,  rushes  wilfully  to  destruction.  He  that  resisteth 
the  power  resisteth  the  ordinance  of  God,  and  they  that  resist, 
purchase  to  themselves  damymtion.  (Ibid,  xiii,  2.)  To  cast 
aside  obedience,  and  by  popular  violence  to  incite  to  revolt,  is 
therefore  treason,  not  against  man  only,  but  against  God. 

As  a  consequence,  the  State,  constituted  as  it  is,  is  clearly 
bound  to  act  up  to  the  manifold  and  weighty  duties  linking  it 
to  God,  by  the  public  profession  of  religion.^  Nature  and 
reason,  which  command  every  individual  devoutly  to  worship 
God  in  holiness,  because  we  belong  to  Him  and  must  return 
to  Him  since  from  Him  we  came,  bind  also  the  civil  community 
by  a  like  law.  For  men  living  together  in  society  are  under 
the  power  of  God  no  less  than  individuals  are,  and  society,  not 
less  than  individuals,  owes  gratitude  to  God,  who  gave  it  being 
and  maintains  it,  and  whose  ever-bounteous  goodness  enriches 
it  with  countless  blessings.  Since,  then,  no  one  is  allowed  to  be 
remiss  in  the  service  due  to  God,  and  since  the  chief  duty  of 
all  men  is  to  cling  to  religion  in  both  its  teaching  and  practice — 
not  such  religion  as  they  may  have  a  preference  for,  but  the 
religion  which  God  enjoins,  and  which  certain  and  most  clear 
marks  show  to  be  the  only  one  true  religion — it  is  a  public  crime 
to  act  as  though  there  were  no  God.  So,  too,  is  it  a  sin  in  the 
State  not  to  have  care  for  religion,  as  a  something  beyond  its 
scope,  or  as  of  no  practical  benefit ;  or  out  of  many  forms  of 
religion  to  adopt  that  one  which  chimes  in  with  the  fancy; 
for  we  are  bound  absolutely  to  worship  God  in  that  way  which 
He  has  shown  to  be  His  will.*  All  who  rule,  therefore,  should 
hold  in  honor  the  holy  name  of  God,  and  one  of  their  chief 
duties  must  be  to  favor  religion,  to  protect  it,  to  shield  it  under 

» See  Ch.  II,  s.  3. 
*  See  Ch.  II,  s.  4. 


THE  CHRISTIAN  CONSTITUTION  OF  STATES        5 

the  credit  and  sanction  of  the  laws,  and  neither  to  organize  nor 
enact  any  measure  that  may  compromise  its  safety.  This  is 
the  bounden  duty  of  rulers  to  the  people  over  whom  they  rule. 
For  one  and  all  are  we  destined  by  our  birth  and  adoption  to 
enjoy,  when  this  frail  and  fleeting  life  is  ended,  a  supreme  and 
final  good  in  Heaven,  and  to  the  attainment  of  this  every 
endeavor  should  be  directed.  Since,  then,  upon  this  depends 
the  full  and  perfect  happiness  of  mankind,  the  securing  of  this 
end  should  be  of  all  imaginable  interests  the  most  urgent.  Hence 
civil  society,  established  for  the  common  welfare,  should  not 
only  safeguard  the  well-being  of  the  community,  but  have  also 
at  heart  the  interests  of  its  individual  members,  in  such  mode 
as  not  in  any  way  to  hinder,  but  in  every  manner  to  render  as 
easy  as  may  be,  the  possession  of  that  highest  and  unchangeable 
good  for  which  all  should  seek.  Wherefore,  for  this  purpose, 
oare  must  especially  be  taken  to  preserve  unharmed  and  unim- 
peded the  religion  whereof  the  practice  is  the  link  connecting 
man  with  God. 

Now,  it  cannot  be  difficult  to  find  out  which  is  the  true  religion, 
if  only  it  be  sought  with  an  earnest  and  unbiassed  mind;  for 
proofs  are  abundant  and  striking.  We  have,  for  example,  the 
fulfilment  of  prophecies;  miracles  in  great  number;  the  rapid 
spread  of  the  faith  in  the  midst  of  enemies  and  in  face  of 
overwhelming  obstacles ;  the  witness  of  the  martyrs,  and  the  like. 
From  all  these  it  is  evident  that  the  only  true  religion  is  the 
one  established  by  Jesus  Christ  Himself,  and  which  He  com- 
mitted to  His  Church  to  protect  and  to  propagate. 

For  the  only-begotten  Son  of  God  established  on  earth  a 
society  which  is  called  the  Church,  and  to  it  He  handed  over 
the  exalted  and  divine  office  which  He  had  received  from  His 
Father,  to  be  continued  through  the  ages  to  come.  As  the  Father 
hath  sent  Me,  I  also  send  you.  (John  xx,  21.)  Behold  I  am 
ivith  you  all  days,  even  to  the  consummation  of  the  world. 
(Matt,  xxviii,  20.)  Consequently,  as  Jesus  Christ  came  into 
the  world  that  men  might  have  life  and  have  it  more  abundantly 
(John  X,  10.),  so  also  has  the  Church  for  its  aim  and  end  the 
eternal  salvation  of  souls,  and  hence  it  is  so  constituted  as  to 
open  wide  its  arms  to  all  mankind,  unhampered  by  any  limit 


6  STATE  AND  CHURCH 

of  either  time  or  place.  Preach  ye  the  Gospel  to  every  creature. 
(Mark  xvi,  15.) 

Over  this  mighty  multitude  God  has  Himself  set  rulers  with 
power  to  govern;  and  He  has  willed  that  one  should  be  the 
head  of  all,  and  the  chief  and  unerring  teacher  of  truth,  to 
whom  He  has  given  the  keys  of  the  kingdom  of  heaven.  (Matt, 
xvi,  19.)  Feed  My  lambs,  feed  my  sheep.  (John  xxi,  16,  17.) 
I  have  prayed  for  thee  that  thy  faith  fail  not.     (Luke  xxii,  32.) 

This  society  is  made  up  of  men,  just  as  civil  society  is,  and 
yet  is  supernatural  and  spiritual,  on  account  of  the  end  for 
which  it  was  founded,  and  of  the  means  by  which  it  aims  at 
attaining  that  end.  Hence  it  is  distinguished  and  differs  from 
civil  society,  and  what  is  of  highest  moment,  it  is  a  society 
chartered  as  of  right  divine,  perfect  in  its  nature  and  in  its 
title,  to  possess  in  itself  and  by  itself,  through  the  will  and 
loving  kindness  of  its  Founder,  all  needful  provision  for  its 
maintenance  and  action.  And  just  as  the  end  at  which  the 
Church  aims  is  by  far  the  noblest  of  ends,  so  is  its  authority 
the  most  exalted  of  all  authority,  nor  can  it  be  looked  upon  as 
inferior  to  the  civil  power,  or  in  any  manner  dependent  upon  it.** 

In  very  truth  Jesus  Christ  gave  to  His  Apostles  unrestrained 
authority  in  regard  to  things  sacred,  together  with  the  genuine 
and  most  true  power  of  making  laws  as  also  with  the  twofold 
right  of  judging  and  of  punishing,  which  flow  from  that  power. 
All  power  is  given  to  Me  in  heaven  and  on  earth:  going  there- 
fore teach  all  nations  .  .  .  teaching  them  to  observe  all  things 
whatsoever  I  have  commanded  you.  (Matt,  xxviii,  18-20.) 
And  in  another  place,  If  he  will  not  hear  them,  tell  the  Church. 
(Matt,  xviii,  17.)  And  again,  In  readiness  to  revenge  all  dis- 
obedience. (2  Cor.  X,  6.)  And  once  more,  That  ...  7  may 
not  deal  more  severely  according  to  the  power  which  the  Lord 
hath  given  me,  unto  edification  and  not  unto  destruction. 
(2  Cor.  xiii,  10.)  Hence  it  is  the  Church,  and  not  the  State, 
that  is  to  be  man's  guide  to  Heaven.  It  is  to  the  Church  that 
God  has  assigned  the  charge  of  seeing  to,  and  legislating  for, 
all  that  concerns  religion;  of  teaching  all  nations;  of  spreading 
the  Christian  faith  as  widely  as  possible ;  in  short,  of  administer- 
'  See  Ch.  II,  s.  5. 


THE  CHRISTIAN  CONSTITUTION  OF  STATES        7 

ing  freely  and  without  hindrance,  in  accordance  with  her  own 
judgment,  all  matters  that  fall  within  its  competence. 

Now  this  authority,  perfect  in  itself,  and  plainly  meant  to  be 
unfettered,  so  long  assailed  by  a  philosophy  that  truckles  to 
the  State,  the  Church  has  never  ceased  to  claim  for  herself 
and  openly  to  exercise.  The  Apostles  themselves  were  the  first 
to  uphold  it,  when,  being  forbidden  by  the  rulers  of  the  Syna- 
gogue to  preach  the  Gospel,  they  courageously  answered,  We 
must  obey  God  rather  than  men.  (Acts  v,  29.)  This  same 
authority  the  holy  Fathers  of  the  Church  were  always  careful 
to  maintain  by  weighty  arguments,  according  as  occasion  arose, 
and  the  Roman  Pontiffs  have  never  shrunk  from  defending  it 
with  unbending  constancy.  Nay  more,  princes  and  all  invested 
with  power  to  rule  have  themselves  approved  it,  in  theory  alike 
and  in  practice.  It  cannot  be  called  in  question  that  in  the 
making  of  treaties,  in  the  transaction  of  business  matters,  in 
sending  and  receiving  Ambassadors,  and  in  the  interchange 
of  other  kinds  of  official  dealings,  they  have  been  wont  to  treat 
with  the  Church  as  with  a  supreme  and  legitimate  power.  And 
assuredly  all  ought  to  hold  that  it  was  not  without  a  singular 
disposition  of  God's  providence  that  this  power  of  the  Church 
was  provided  with  a  civil  sovereignty  as  the  surest  safeguard 
of  her  independence.^ 

The  Almighty,  therefore,  has  appointed  the  charge  of  the 
human  race  between  two  powers,  the  ecclesiastical  and  the  civil, 
the  one  being  set  over  divine,  the  other  over  human  things. 
Each  in  its  kind  is  supreme,  each  has  fixed  limits  within  which 
it  is  contained,  limits  which  are  defined  by  the  nature  and 
special  object  of  the  province  of  each,  so  that  there  is,  we  may 
say,  an  orbit  traced  out  within  which  the  action  of  each  is 
brought  into  play  by  its  own  native  right. '^  But  inasmuch  as 
each  of  these  two  powers  has  authority  over  the  same  subjects, 
and  as  it  might  come  to  pass  that  one  and  the  same  thing — 
related  differently,  but  still  remaining  one  and  the  same  thing- 
might  belong  to  the  jurisdiction  and  determination  of  both, 
therefore  God,  who  foresees  all  things,  and  who  is  the  author 

•SeeCh.  II,  s.  6. 

'  See  Ch.  II,  s.  7. 


8  STATE  AND  CHURCH 

of  these  two  powers,  has  marked  out  the  course  of  each  in  right 
correlation  to  the  other.  For  the  powers  that  are,  are  ordained 
of  God.  (Rom.  xiii,  1.)  Were  this  not  so,  deplorable  conten- 
tions and  conflicts  would  often  arise,  and  not  infrecjuently  men, 
like  travelers  at  the  meeting  of  two  roads,  would  hesitate  in 
anxiety  and  doubt,  not  knowing  what  course  to  follow.  Two 
powers  would  be  commanding  contrary  things,  and  it  would 
be  a  dereliction  of  duty  to  disobey  either  of  the  two. 

But  it  would  be  most  repugnant  to  deem  thus  of  the  wisdom 
and  goodness  of  God.  Even  in  physical  things,  albeit  of  a  lower 
order,  the  Almighty  has  so  combined  the  forces  and  springs  of 
nature  with  tempered  action  and  wondrous  harmony  that  no 
one  of  them  clashes  with  any  other,  and  all  of  them  most  fitly 
and  aptly  work  together  for  the  great  purpose  of  the  universe. 
There  must,  accordingly,  exist,  between  these  two  powers,  a 
certain  orderly  connection,  which  may  be  compared  to  the  union 
of  the  soul  and  body  in  man.  The  nature  and  scope  of  that 
connection  can  be  determined  only,  as  We  have  laid  down, 
by  having  regard  to  the  nature  of  each  power,  and  by  taking 
account  of  the  relative  excellence  and  nobleness  of  their  purpose. 
One  of  the  two  has  for  its  proximate  and  chief  object  the  well- 
being  of  this  mortal  life;  the  other  the  everlasting  joys  of 
Heaven.  Whatever,  therefore,  in  things  human  is  of  a  sacred 
character,  whatever  belongs  either  of  its  own  nature  or  by 
reason  of  the  end  to  which  it  is  referred,  to  the  salvation  of 
sonls,  or  to  the  worship  of  God,  is  subject  to  the  power  and 
judgment  of  the  Church.  Whatever  is  to  be  ranged  under  the 
civil  and  political  order  is  rightly  subject  to  the  civil  authority. 
Jesus  Christ  has  Himself  given  command  that  what  is  Caesar's 
is  to  be  rendered  to  Caesar,  and  that  what  belongs  to  God  is  to 
be  rendered  to  God.^ 

There  are,  nevertheless,  occasions  when  another  method  of 
concord  is  available  for  the  sake  of  peace  and  liberty :  We  mean 
when  rulers  of  the  State  and  the  Roman  Pontiif  come  to  an 
understanding  touching  some  special   matter.     At  such  times 

"  See  Ch.  II,  s.  8. 


THE  CHRISTIAN  CONSTITUTION  OF  STATES        9 

the  Church  gives  signal  proof  of  her  motherly  love  by  showing 
the  greatest  possible  kindliness  and  indulgence.'' 

Such  then,  as  We  have  briefly  pointed  out,  is  the  Christian 
organization  of  civil  society ;  not  rashly  or  fancifully  shaped 
out,  but  educed  from  the  highest  and  truest  principles,  confirmed 
by  natural  reason  itself. 

In  such  an  organization  of  the  State,  there  is  nothing  that 
can  be  thought  to  infringe  upon  the  dignity  of  rulers,  and 
nothing  unbecoming  them;  nay,  so  far  from  degrading  the 
sovereign  power  in  its  due  rights,  it  adds  to  it  permanence  and 
lustre.  Indeed,  when  more  fully  pondered,  this  mutual  co- 
ordination has  a  perfection  in  which  all  other  forms  of  govern- 
ment are  lacking,  and  from  which  excellent  results  would  flow, 
were  the  several  component  parts  to  keep  their  place  and  duly 
discharge  the  office  and  work  appointed  respectively  for  each. 
And,  doubtless,  in  the  Constitution  of  the  State  such  as  we  have 
described,  divine  and  human  things  are  equitably  shared;  the 
rights  of  citizens  assured  to  them,  and  fenced  round  by  divine, 
by  natural,  and  by  human  law;  the  duties  incumbent  on  each 
one  being  wisely  marked  out,  and  their  fulfilment  fittingly 
insured.  In  their  uncertain  and  toilsome  journey  towards  the 
city  made  without  hands,  all  see  that  they  have  safe  guides 
and  helpers  on  their  way,  and  are  conscious  that  others  have 
charge  to  protect  their  persons  alike  and  their  possessions,  and 
to  obtain  or  preserve  for  them  everything  essential  for  their 
present  life.  Furthermore,  domestic  society  acquires  that  firm- 
ness and  solidity  so  needful  to  it,  from  the  holiness  of  marriage, 
one  and  indissoluble,  wherein  the  rights  and  duties  of  husband 
and  wife  are  controlled  with  wise  justice  and  equity ;  due  honor 
is  assured  to  the  woman;  the  authority  of  the  husband  is  con- 
formed to  the  pattern  afforded  by  the  authority  of  God;  the 
power  of  the  father  is  tempered  by  a  due  regard  for  the  dignity 
of  the  mother  and  her  offspring ;  and  the  best  possible  provision 
is  made  for  the  guardianship,  welfare,  and  education  of  the 
children. 

In  political  affairs,  and  all  matters  civil,  the  laws  aim  at 
securing  the  common  good,  and  are  not  framed  according  to 

•See  Ch.  II,  a.  9. 


10  STATE  AND  CHURCH 

the  delusive  caprices  and  opinions  of  the  mass  of  the  people, 
but  by  truth  and  by  justice ;  the  ruling  powers  are  invesited  with 
a  sacredncss  more  than  human,  and  are  withheld  from  deviating 
from  the  path  of  duty,  and  from  overstepping  the  bounds  of 
rightful  authority ;  and  the  obedience  of  citizens  is  rendered 
with  a  feeling  of  honor  and  dignity,  since  obedience  is  not  the 
servitude  of  man  to  man,  but  submission  to  the  will  of  God, 
exercising  His  sovereignty  through  the  medium  of  men.  Now, 
this  being  recognized  as  undeniable,  it  is  felt  that  the  high 
office  of  rulers  should  be  held  in  respect ;  that  public  authority 
should  be  constantly  and  faithfully  obeyed;  that  no  act  of 
sedition  should  be  committed ;  and  that  the  civic  order  of  the 
commonwealth  should  be  maintained  as  sacred. 

So,  also,  as  to  the  duties  of  each  one  towards  his  fellow-men, 
mutual  forbearance,  kindliness,  generosity,  are  placed  in  the 
ascendant;  the  man  who  is  at  once  a  citizen  and  a  Christian 
iis  not  drawn  aside  by  conflicting  obligations;  and,  lastly,  the 
abundant  benefits  with  which  the  Christian  religion,  of  its  very 
nature,  endows  even  the  mortal  life  of  man,  are  acquired  for 
the  community  and  civil  society.  And  this  to  such  an  extent 
that  it  may  be  said  in  sober  truth:  "The  condition  of  the 
commonwealth  depends  on  the  religion  with  which  God  is 
worshipped:  and  between  one  and  the  other  there  exists  an 
intimate  and  abiding  connection."  {Sacr.  Imp.  ad  Cyrillum 
Alexand.  et  Episcopos  Metrap.  Cfr.  Labbe,  Collect.  Cone, 
T.  iii.) 

Admirably,  according  to  his  wont,  does  St.  Augustine,  in 
many  passages,  enlarge  upon  the  potency  of  these  advantages; 
but  nowhere  more  markedly  and  to  the  point  than  when  he 
addresses  the  Catholic  Church  in  the  following  words:  "Thou 
dost  teach  and  train  children  with  much  tenderness,  young 
men  with  much  vigor,  old  men  with  much  gentleness;  as  the 
age  not  of  the  body  alone,  but  of  the  mind  of  each  requires. 
Women  thou  dost  subject  to  their  husbands  in  chaste  and  faith- 
ful obedience,  not  for  the  gratifying  of  their  lust,  but  for 
bringing  forth  children,  and  for  having  a  share  in  the  family 
concerns.  Thou  dost  set  husbands  over  their  wives,  not  that 
they  may  play  false  to  the  weaker  sex,  but  according  to  the 


THE  CHRISTIAN  CONSTITUTION  OF  STATES      11 

requirements  of  sincere  affection.  Thou  dost  subject  children 
to  their  parents  in  a  kind  of  free  service,  and  dost  establish 
parents  over  their  children  with  a  benign  rule." 

"...  Thou  joinest  together,  not  in  society  only,  but  in  a  sort 
of  brotherhood,  citizen  with  citizen,  nation  with  nation,  and 
the  whole  race  of  men,  by  reminding  them  of  their  common 
parentage.  Thou  teachest  kings  to  look  to  the  interest®  of 
their  people,  and  dost  admonish  the  people  to  be  submissive  to 
their  kings.  With  all  care  dost  thou  teach  all  to  whom  honor 
is  due,  and  affection,  and  reverence,  and  fear,  consolation,  and 
admonition,  and  exhortation,  and  discipline,  and  reproach,  and 
punishment.  Thou  showest  that  all  these  are  not  equally 
incumbent  on  all,  but  that  charity  is  owing  to  all,  and  wrong- 
doing to  none."  {De  morihus  Eccl.  Cathol.  xxx,  63.)  And 
in  another  place,  blaming  the  false  wisdom  of  certain  time-sav- 
ing philosophers,  he  observes:  "Let  those  who  say  that  the 
teachings  of  Christ  is  hurtful  to  the  State,  produce  such  armies 
as  the  maxims  of  Jesus  have  enjoined  soldiers  to  bring  into 
being;  such  governors  of  provinces;  such  husbands  and  wives; 
such  parents  and  children ;  such  masters  and  servants ;  such 
kings;  such  judges,  and  such  payers  and  collectors  of  tribute, 
as  the  Christian  teaching  instructs  them  to  become,  and  then 
let  them  dare  to  say  that  such  teaching  is  hurtful  to  the  State. 
Nay,  rather  will  they  hesitate  to  own  that  this  discipline,  if  duly 
acted  up  to,  is  the  very  mainstay  of  the  commonwealth?" 
{Epist.  1^8,  al.  5,  ad  Marcellinum,  ii,  15.) 

There  was  once  a  time  when  States  were  governed  by  the 
principles  of  Gospel  teaching.  Then  it  was  that  the  power  and 
divine  virtue  of  Christian  wisdom  had  diffused  itself  through- 
out the  laws,  institutions,  and  morals  of  the  people,  permeating 
all  ranks  and  relations  of  civil  society.  Then,  too,  the  religion 
instituted  by  Jesus  Christ,  established  firmly  in  befitting  dignity, 
flourished  everywhere,  by  the  favor  of  princes  and  the  legiti- 
mate protection  of  magistrates;  and  Church  and  State  were 
happily  united  in  concord  and  friendly  interchange  of  good 
offices.  The  State,  constituted  in  this  wise,  bore  fruits  important 
beyond  all  expectation,  whose  remembrance  is  still,  and  always 
will  be,  in  renown,  witnessed  to  as  they  are  by  countless  proofs 


12  STATE  AND  CHURCH 

which  can  never  be  blotted  out  or  even  obscured  by  any  craft 
of  any  enemies.  Christian  Europe  has  subdued  barbarous 
nations,  and  changed  them  from  a  savage  to  a  civilized  condition, 
from  superstition  to  true  worship.  It  victoriously  rolled  back 
the  tide  of  Mohammedan  conquest;  retained  the  headship  of 
civilization;  stood  forth  in  the  front  rank  as  the  leader  and 
teacher  of  all,  in  every  branch  of  national  culture;  bestowed  on 
the  world  the  gift  of  true  and  many-sided  liberty;  and  most 
wisely  founded  very  numerous  institutions  for  the  solace  of 
human  suffering.  And  if  we  inquire  how  it  was  able  to  bring 
about  so  altered  a  condition  of  things,  the  answer  is — Beyond 
all  question,  in  large  measure,  through  religion ;  under  whose 
auspices  so  many  great  undertakings  were  set  on  foot,  through 
whose  aid  they  were  brought  to  completion. 

A  similar  state  of  things  would  certainly  have  continued  had 
the  agreement  of  the  two  powers  been  lasting.  More  important 
results  even  might  have  been  justly  looked  for,  had  obedience 
waited  upon  the  authority,  teaching,  and  counsels  of  the  Church, 
and  had  this  submission  been  specially  marked  by  greater  and 
more  unswerving  loyalty.  For  that  should  be  regarded  in  the  light 
of  an  ever-changeless  law  which  Ivo  of  Chartres  wrote  to  Pope 
Paschal  II:  "When  kingdom  and  priesthood  are  at  one,  in 
complete  accord,  the  world  is  well  ruled,  and  the  Church 
flourishes,  and  brings  forth  abundant  fruit.  But  when  they 
are  at  variance,  not  only  smaller  interests  prosper  not,  but  even 
things  of  greatest  moment  fall  into  deplorable  decay."  {Epist. 
238.) 

Sad  it  is  to  call  to  mind  how  the  harmful  and  lamentable  rage 
for  innovation  which  rose  to  a  climax  in  the  sixteenth  century, 
threw  first  of  all  into  confusion  the  Christian  religion,  and 
next,  by  natural  sequence,  invaded  the  precincts  of  philosophy, 
whence  it  spread  amongst  all  classes  of  society.  From  this  source, 
as  from  a  fountain-head,  burst  forth  all  those  later  tenets  of 
unbridled  license  which,  in  the  midst  of  the  terrible  upheavals 
of  the  last  century,  were  wildly  conceived  and  boldly  proclaimed 
as  the  principles  and  foundation  of  that  new  jurisprudence 
which  was  not  merely  previously  unknown,  but  was  at  variance 


THE  CHRISTIAN  CONSTITUTION  OF  STATES      13 

on  many  points  with  not  only  the  Christian,  but  even  with  the 
natural  law. 

Amongst  these  principles  the  main  one  lays  down  that  as  all 
men  are  alike  by  race  and  nature,  so  in  like  manner  all  are 
equal  in  the  control  of  their  life;  that  each  one  is  so  far  his 
own  master  as  to  be  in  no  sense  under  the  rule  of  any  other 
individual ;  that  each  is  free  to  think  on  every  subject  just  as 
he  may  choose,  and  to  do  whatever  he  may  like  to  do;  that  no 
man  has  any  right  to  rule  over  other  men.  In  a  society 
grounded  upon  such  maxims,  all  government  is  nothing  more  or 
less  than  the  will  of  the  people,  and  the  people,  being  under  the 
power  of  itself  alone,  is  alone  its  own  ruler.  It  does  choose 
nevertheless  some  to  whose  charge  it  may  commit  itself,  but  in 
such  wise  that  it  makes  over  to  them  not  the  right  so  much  as 
the  business  of  governing,  to  be  exercised,  however,  in  its  name. 

The  authority  of  God  is  passed  over  in  silence,  just  as  if 
there  were  no  God;  or  as  if  He  cared  nothing  for  human 
society;  or  as  if  men,  whether  in  their  individual  capacity  or 
bound  together  in  social  relations,  owed  nothing  to  God ;  or  as 
if  there  could  be  a  government  of  which  the  whole  origin  and 
power  and  authority  did  not  reside  in  God  Himself.  Thus,  as 
is  evident,  a  State  becomes  nothing  but  a  multitude,  which  is 
Its  own  master  and  ruler.  And  since  the  populace  is  declared 
to  contain  within  itself  the  spring-head  of  all  rights  and  of  all 
power,  it  follows  that  the  State  does  not  consider  itself  bound 
by  any  kind  of  duty  towards  God.  Moreover,  it  believes  that 
it  is  not  obliged  to  make  public  profession  of  any  religion ;  or 
to  inquire  which  of  the  very  many  religions  is  the  only  one 
true ;  or  to  prefer  one  religion  to  all  the  rest ;  or  to  show  to  any 
form  of  religion  special  favor ;  but,  on  the  contrary,  is  bound  to 
grant  equal  rights  to  every  creed,  so  that  public  order  may  not 
be  disturbed  by  any  particular  form  of  religious  belief. 

And  it  is  a  part  of  this  theory  that  all  questions  that  concern 
religion  are  to  be  referred  to  private  judgment;  that  every  one 
is  to  be  free  to  follow  whatever  religion  he  prefers,  or  none 
at  all  if  he  disapprove  of  all.  From  this  the  following  conse- 
quences logically  flow:  that  the  judgment  of  each  one's  con- 
science is  independent  of  all  law;  that  the  most  unrestrained 


14  STATE  AND  CHURCH 

opinions  may  be  openly  expressed  as  to  the  practice  or  omission 
of  divine  worship ;  and  that  every  one  has  unbounded  license 
to  think  whatever  he  chooses  and  to  publish  abroad  whatever  he 
thinks. 

Now  when  the  State  rests  on  foundations  like  those  just  named 
— and  for  the  time  being  they  are  greatly  in  favor — it  readily 
appears  into  what  and  how  unrightful  a  position  the  Church 
is  driven.  For  when  the  management  of  public  business  is  in 
harmony  with  doctrines  of  such  a  kind,  the  Catholic  religion  is 
allowed  a  standing  in  civil  society  equal  only,  or  inferior,  to 
societies  alien  from  it ;  no  regard  is  paid  to  the  laws  of  the 
Church,  and  she  who,  by  the  order  and  commission  of  Jesus 
Christ,  has  the  duty  of  teaching  all  nations,  finds  herself  for- 
bidden to  take  any  part  in  the  instruction  of  the  people.  With 
reference  to  matters  that  are  of  twofold  jurisdiction,  they  who 
administer  the  eivil  power  lay  down  the  law  at  their  own  will, 
and  in  matters  that  appertain  to  religion  defiantly  put  aside 
the  most  sacred  decrees  of  the  Church.  They  claim  jurisdiction 
over  the  marriages  of  Catholics,  even  over  the  bond  as  well  as 
the  unity  and  the  indissolubility  of  matrimony.  They  lay  hands 
on  the  goods  of  the  clergy,  contending  that  the  Church  cannot 
possess  property.  Lastly,  they  treat  the  Church  with  such 
arrogance  that,  rejecting  entirely  her  title  to  the  nature  and 
rights  of  a  perfect  society,  they  hold  that  she  differs  in  no 
respect  from  other  societies  in  the  State,  and  for  this  reason 
possesses  no  right  nor  any  legal  power  of  action,  save  that 
which  she  holds  by  the  concession  and  favor  of  the  government. 
If  in  any  State  the  Church  retains  her  own  right — and  this  with 
the  approval  of  the  civil  law,  owing  to  an  agreement  publicly 
entered  into  by  the  two  powers — men  forthwith  begin  to  cry 
out  that  matters  affecting  the  Church  must  be  separated  from 
those  of  the  State." 

Their  object  in  uttering  this  cry  is  to  be  able  to  violate 
unpunished  their  plighted  faith,  and  in  all  things  to  have 
unchecked  control.  And  as  the  Church,  unable  to  abandon  her 
chiefest  and  most  sacred  duties,  cannot  patiently  put  up  with 
this,  and  asks  that  the  pledge  given  to  her  be  fully  and  scrupu- 

"See  Ch.  11,3.  10. 


THE  CHRISTIAN  CONSTITUTION  OF  STATES      15 

lously  acted  up  to,  contentions  frequently  arise  between  the 
ecclesiastical  and  the  civil  power,  of  which  the  issue  commonly 
is,  that  the  weaker  power  yields  to  the  one  which  is  stronger  in 
human  resources. 

Accordingly,  it  has  become  the  practice  and  determination 
under  this  condition  of  public  polity  (now  so  much  admired  by 
many)  either  to  forbid  the  action  of  the  Church  altogether,  or 
to  keep  her  in  check  and  bondage  to  the  State.  Public  enact- 
ments are  in  great  measure  framed  with  this  design.  The 
drawing  up  of  laws,  the  administration  of  State  affairs,  the 
godless  education  of  youth,  the  spoliation  and  suppression  of 
religious  orders,  the  overthrow  of  the  temporal  power  of  the 
Roman  Pontiff,  all  alike  aim  at  this  one  end — to  paralyze  the 
action  of  Christian  institutions,  to  cramp  to  the  utmost  the  free- 
dom of  the  Catholic  Church,  and  to  curtail  her  every  single 
prerogative. 

Now,  natural  reason  itself  proves  convincingly  that  such  con- 
cepts of  the  government  of  a  State  are  wholly  at  variance  with 
the  truth.  Nature  itself  bears  witness  that  all  power,  of  every 
kind,  has  its  origin  from  God,  who  is  its  chief  and  most  august 
source. 

The  sovereignty  of  the  people,  however,  and  this  without  any 
reference  to  God,  is  held  to  reside  in  the  multitude;  which  is 
doubtless  a  doctrine  exceedingly  well  calculated  to  flatter  and 
to  inflame  many  passions,  but  which  lacks  all  reasonable  proof, 
and  all  power  of  insuring  public  safety  and  preserving  order. 
Indeed  from'  the  prevalence  of  this  teaching,  things  have  come 
to  such  a  pass  that  many  hold  as  an  anxiom  of  civil  jurispru- 
dence that  seditions  may  be  rightfully  fostered.  For  the 
opinion  prevails  that  princes  are  nothing  more  than  delegates 
chosen  to  carry  out  the  will  of  the  people;  whence  it  necessarily 
follows  that  all  things  are  as  changeable  as  the  will  of  the 
people,  so  that  risk  of  public  disturbance  is  ever  hanging  over 
our  heads.^^ 

To  hold  therefore  that  there  is  no  difference  in  matters  of 
religion  between  forms  that  are  unlike  each  other,  and  even 
contrary  to  each  other,  most  clearly  leads  in  the  end  to  the 

"SeeCh.  II,  s.  11. 


16  STATE  AND  CHURCH 

rejection  of  all  religioni  in  both  theory  and  practice.  And  this 
is  the  same  thing  as  atheism,  however  it  may  differ  from  it  in 
name.  Men  who  really  believe  in  the  existence  of  God  mu.st, 
in  order  to  be  consistent  with  themselves  and  to  avoid  absurd 
conclusions,  understand  that  differing  modes  of  divine  worship 
involving  dissimilarity  and  conflict  even  on  most  important 
points,  cannot  all  be  equally  probable,  equally  good,  and  equally 
acceptable  to  God. 

So,  too,  the  liberty  of  thinking,  and  of  publishing,  whatso- 
ever each  one  likes,  without  any  hindrance  is  not  in  itself  an 
advantage  over  which  society  can  wisely  rejoice.  On  the  con- 
trary it  is  the  fountain-head  and  origin  of  many  evils.  Liberty 
is  a  power  perfecting  man,  and  hence  should  have  truth  and 
goodness  for  its  object.  But  the  character  of  goodness  and 
truth  cannot  be  changed  at  option.  These  remain  ever  one  and 
the  same,  and  are  no  less  unchangeable  than  Nature  herself. 
If  the  mind  assents  to  false  opinions,  and  the  will  chooses  and 
follows  after  what  is  wrong,  neither  can  attain  its  native  ful- 
ness, but  both  most  fall  from  their  native  dignity  into  an  abyss 
of  corruption.  Whatever,  therefore,  is  opposed  to  virtue  and 
truth,  may  not  rightly  be  brought  temptingly  before  the  eye 
of  man,  much  less  sanctioned  by  the  favor  and  protection  of  the 
law.^^  A  well-spent  life  is  the  only  passport  to  Heaven, 
whither  all  are  bound,  and  on  this  account  the  State  is  acting 
against  the  laws  and  dictates  of  nature  whenever  it  permits  the 
license  of  opinion  and  of  action  to  lead  minds  astray  from  truth 
and  souls  away  from  the  practice  of  virtue.  To  exclude  the 
Church,  founded  by  God  Himself,  from  the  business  of  life, 
from  the  power  of  making  laws,  from  the  training  of  youth, 
from  domestic  societj^,  is  a  grave  and  fatal  error.  A  State 
from  which  religion  is  banished  can  never  be  well  regulated; 
and  already  perhaps  more  than  is  desirable  is  known  of  the 
nature  and  tendency  of  the  so-called  civil  philosophy  of  life  and 
morals.  The  Church  of  Christ  is  the  true  and  sole  teacher  of 
virtue  and  guardian  of  morals.  She  it  is  who  preserves  in  their 
purity  the  principles  from  which  duties  flow,  and  by  setting 
forth  most  urgent  reasons  for  virtuous  life,  bids  us  not  only  to 

"See  Ch.  II,  s.  12. 


THE  CHRISTIAN  CONSTITUTION  OF  STATES       17 

turn  away  from  wicked  deeds,  but  even  to  curb  all  movements 
of  the  mind  that  are  opposed  to  reason,  even  though  they  be 
not  carried  out  in  action. 

To  wish  the  Church  to  be  snbject  to  the  civil  power  in  the 
exercise  of  her  duty  is  a  great  folly  and  a  sheer  injustice. 
Whenever  this  is  the  case,  order  is  disturbed,  for  things  natural 
are  put  above  things  supernatural ;  the  many  benefits  which  the 
Church,  if  free  to  act,  would  confer  on  society  are  either  pre- 
vented or  at  least  lessened  in  number;  and  a  way  is  prepared 
for  enmities  and  contentions  between  the  two  powers,  with 
what  evil  result  to  both  the  issue  of  events  has  taught  us  only 
too  frequently. 

Doctrines  such  as  these,  which  cannot  be  approved  by  human 
reason,  and  most  seriously  affect  the  whole  civil  order.  Our 
predecessors  the  Roman  Pontiffs  (well  aware  of  what  their 
apostolic  office  required  of  them)  have  never  allowed  to  pass 
uncondemned.  Thus  Gregory  XVI  in  his  Encyclical  Letter 
Mirari  vos,  of  date  August  15,  1832,  inveighed  with  weighty 
words  against  the  sophisms,  which  even  at  his  time  were  being 
publicly  inculcated^ — namely,  that  no  preference  should  be 
shown  for  any  particular  form  of  worship ;  that  it  is  right 
for  individu^als  to  form  their  own  personal  judgments  about 
religion ;  that  each  man 's  conscience  is  his  sole  and  all-sufficing 
guide;  and  that  it  is  lawful  for  every  man  to  publish  his  own 
views,  whatever  they  may  be,  and  even  to  conspire  against  the 
State.  On  the  question  of  the  separation  of  Church  and  State 
the  same  Pontiff  writes  as  follows:  "Nor  can  We  hope  for 
happier  results  either  for  religion  or  for  the  civil  government 
from  the  wishes  of  those  who  desire  that  the  Church  be  separated 
from  the  State,  and  the  concord  between  the  secular  and 
ecclesiastical  authority  be  dissolved.  It  is  clear  that  these  men, 
who  yearn  for  a  shameless  liberty,  live  in  dread  of  an  agree- 
ment which  has  always  been  fraught  with  good,  and  advanta- 
geous alike  to  sacred  and  civil  interests."  To  the  like  effect,  also, 
as  occasion  presented  itself,  did  Pius  IX  brand  publicly  many 
false  opinions  which  were  gaining  ground,  and  afterwards 
ordered  them  to  be  condensed  in  summary  form  in  order  that 
in  this  sea  of  error  Catholics  might  have  a  light  which  they 


18  STATE  AND  CHURCH 

might  safely  follow.     It  will  suffice  to  indicate  a  few  of  them: 

Prop,  xix :  "The  Church  is  not  a  true,  perfect,  and  wholly  inde- 
pendent society,  possessing  its  own  unchanging  rights  conferred  upon 
it  by  its  Divine  Founder;  but  it  is  for  the  civil  power  to  determine 
what  are  the  rights  of  the  Church,  and  the  limits  within  which  it  may 
use  them."  Prop,  xxxix:  "The  State,  as  the  origin  and  source  of  all 
rights  enjoys  a  right  that  is  unlimited."  Prop.  Iv:  "The  Church  must 
be  separated  from  the  State,  and  the  State  from  the  Church."  Prop. 
Ixxix :  "It  is  untrue  that  the  civil  liberty  of  every  form  of  worship, 
and  the  full  power  given  to  all  of  openly  and  publicly  manifesting 
whatsoever  opinions  and  thoughts,  lead  to  the  more  ready  corruption 
of  the  minds  and  morals  of  the  people,  and  to  the  spread  of  the  plague 
of  religious  indifference."^^ 

From  these  pronouncements  of  the  Popes  it  is  evident  that 
the  origin  of  public  power  is  to  be  sought  for  in  God  Himself, 
and  not  in  the  multitude,  and  that  it  is  repugnant  to  reason  to 
allow  free  scope  for  sedition.  Again,  that  it  is  not  lawful  for 
the  State,  any  more  than  for  the  individual,  either  to  disregard 
all  religious  duties  or  to  hold  in  equal  favor  different  kinds  of 
religion:  that  the  unrestrained  freedom  of  thinking  and  of 
openly  making  known  one's  thoughts  is  not  inherent  in  the 
rights  of  citizens,  and  is  by  no  means  to  be  reckoned  worthy  of 
favor  and  support.  In  like  manner  it  is  to  be  understood  that 
the  Church  no  less  than  the  State  itself  is  a  society  perfect  in 
its  own  nature  and  its  own  right,  and  that  those  who  exercise 
sovereignty  ought  not  so  to  act  as  to  compel  the  Church  to 
become  subservient  or  subject  to  them,  or  to  hamper  her  liberty 
in  the  management  of  her  own  affairs,  or  to  despoil  her  in  any 
way  of  the  other  privileges  conferred  upon  her  by  Jesus  Christ. 
In  matters,  however,  of  mixed  jurisdiction,  it  is  in  the  highest 
degree  consonant  to  nature,  as  also  to  the  designs  of  God,  that 
so  far  from  one  of  the  powers  separating  itself  from  the  other, 
or  still  less  coming  into  conflict  with  it,  complete  harmony,  such 
as  is  suited  to  the  end  for  which  each  power  exists,  should  be 
preserved  between  them. 

This  then  is  the  teaching  of  the  Catholic  Church  concerning 
the  constitution  and  government  of  the  State.     By  the  words 

"See  Ch.  II,  s.  13. 


THE  CHRISTIAN  CONSTITUTION  OF  STATES      19 

and  decrees  just  cited,  if  judged  dispasvsionately,  no  one  of  the 
several  forms  of  government  is  in  itself  condemned,  inasmuch 
as  none  of  them  contain  anything  contrary  to  Catholic  doctrine, 
and  all  of  them  are  capable,  if  wisely  and  justly  managed,  to 
insure  the  welfare  of  the  State.  Neither  is  it  blameworthy  in 
itself,  in  any  manner,  for  the  people  to  have  a  share,  greater 
or  less  in  the  government :  for  at  certain  times,  and  under  cer- 
tain laws,  such  participation  may  not  only  be  of  benefit  to  the 
citizens,  but  may  even  be  of  obligation.  Nor  is  there  any 
reason  why  any  one  should  accuse  the  Church  of  being  wanting 
in  gentleness  of  action  or  largeness  of  view,  or  of  being  opposed 
to  real  and  lawful  liberty.  The  Church,  indeed,  deems  it  un- 
lawful to  place  the  various  forms  of  divine  worship  on  the 
same  footing  as  the  true  religion,  but  does  not,  on  that  account, 
condemn  those  rulers  who,  for  the  sake  of  securing  some  great 
good  or  of  hindering  some  great  evil,  allow  patiently  custom  or 
usage  to  be  a  kind  of  sanction  for  each  kind  of  religion  having 
its  place  in  the  State."  And  in  fact  the  Church  is  wont  to 
take  earnest  heed  that  no  one  shall  be  forced  to  embrace  the 
Catholic  faith  against  his  will,  for,  as  St.  Augustine  wisely 
reminds  us,  "Man  cannot  believe  otherwise  than  of  his  own 
free  will." 

In  the  same  way  the  Church  cannot  approve  of  that  liberty 
which  begets  a  contempt  of  the  most  sacred  laws  of  God,  and 
casts  off  the  obedience  due  to  lawful  authority,  for  this  is  not 
liberty  so  much  as  license,  and  is  most  correctly  styled  by 
St.  Augustine  the  "liberty  of  self-ruin,"  and  by  the  Apostle 
St.  Peter  the  cloak  of  malice.  (Peter  ii,  16.)  Indeed,  since  it 
is  opposed  to  reason,  it  is  a  true  slavery,  for  whosoever  com- 
mitteth  sin  is  the  slave  of  sin.  (John  viii,  34.)  On  the  other 
hand,  that  liberty  is  truly  genuine,  and  to  be  sought  after,  which 
in  regard  to  the  individual  does  not  allow  men  to  be  the  slaves 
of  error  and  of  passion,  the  worst  of  all  masters;  which,  too,  in 
public  administration  guides  the  citizens  in  wisdom  and  pro. 
vides  for  them  increased  means  of  well-being;  and  which, 
further,  protects  the  State  from  foreign  interference. 

"  See  Ch.  II,  3.  14. 


20  STATE  AND  CHURCH 

This  honorable  liberty,  alone  worthy  of  human  beings,  the 
Church  approves  most  highly  and  has  never  slackened  her  en- 
deavor to  preserve,  strong  and  unchanged,  among  nations.  And 
in  truth  whatever  in  the  State  is  of  chief  avail  for  the  common 
welfare;  whatever  has  been  usefully  established  to  curb  the 
license  of  rulers  who  are  opposed  to  the  true  interests  of  the 
people,  or  to  keep  in  check  the  leading  authorities  from  unwar- 
rantably interfering  in  municipal  or  family  affairs — whatever 
tends  to  uphold  the  honor,  manhood,  and  equal  rights  of  indi- 
vidual citizens; — of  all  these  things,  as  the  monuments  of  past 
ages  bear  witness,  the  Catholic  Church  has  always  been  the 
originator,  the  promoter,  or  the  guardian.  Ever  therefore  con- 
sistent with  herself,  while  on  the  one  hand  she  rejects  that 
exorbitant  liberty  which  in  individuals  and  in  nations  ends 
in  license  or  in  thraldom,  on  the  other  hand,  she  willingly  and 
most  gladly  welcomes  whatever  improvements  the  age  brings 
forth,  if  these  really  secure  the  prosperity  of  life  here  below, 
which  is  as  it  were  a  stage  in  the  journey  to  the  life  that  will 
know  no  ending. 

Therefore,  when  it  is  said  the  Church  is  jealous  of  modern 
political  systems,  and  that  she  repudiates  the  discoveries  of 
modern  research,  the  charge  is  a  ridiculous  and  groundless 
calumny.  Wild  opinions  she  does  repudiate,  wicked  and 
seditious  projects  she  does  condemn,  together  with  that  habit 
of  mind  which  points  to  the  beginning  of  a  wilful  departure 
from  God.  But  as  all  truth  must  necessarily  proceed  from 
God,  the  Church  recognizes  in  all  truth  that  is  reached  by 
research,  a  trace  of  the  divine  intelligence.  And  as  all  truth 
in  the  natural  order  is  powerless  to  destroy  belief  in  the  teach- 
ings of  revelation,  but  can  do  much  to  contirm  it,  and  as  every 
newly  discovered  truth  may  serve  to  further  the  knowledge  or 
the  praise  of  God,  it  follows  that  whatsoever  spreads  the  range 
of  knowledge  will  always  be  willingly  and  even  joyfully  wel- 
comed by  the  Church.  She  will  always  encourage  and  promote, 
as  she  does  in  other  branches  of  knowledge,  all  study  occupied 
with  the  investigation  of  nature.  In  these  pursuits,  should  the 
human  intellect  discover  anything  not  known  before,  the 
Church  makes  no  opposition.     She  never  objects  to  search  being 


THE  CHRISTIAN  CONSTITUTION  OF  STATES      21 

made  for  things  that  minister  to  the  refinements  -and  comforts 
of  life.  So  far  indeed  from  opposing  these  she  is  now,  as  she 
ever  has  been,  hostile  alone  to  indolence  and  sloth,  and  earnestly 
wishes  that  the  talents  of  men  may  bear  more  and  more  abundant 
fruit  by  cultivation  and  exercise.  Moreover  she  gives  encour- 
agement to  every  kind  of  art  and  handicraft,  and  through  her 
influence,  directing  all  strivings  after  progress  towards  virtue 
and  salvation,  she  labors  to  prevent  man's  intellect  and  industry 
from  turning  him  away  from  God  and  from  heavenly  things. 

All  this,  though  so  reasonable  and  full  of  counsel,  finds  little 
favor  nowadays  when  States  not  only  refuse  to  conform  to  the 
rules  of  Christian  wisdom,  but  seem,  even  anxious  to  recede 
from  them  further  and  further  on  each  successive  day.  Never- 
theless, since  truth  when  brought  to  light  is  wont,  of  its  own 
nature,  to  sprC'ad  itself  far  and  wide,  and  gradually  take  pos- 
session of  the  minds  of  men.  We,  moved  by  the  great  and  holy 
duty  of  Our  apostolic  mission  to  all  nations,  speak,  as  We  are 
bound  to  do,  with  freedom.  Our  eyes  are  not  closed  to  the 
spirit  of  the  times.  We  repudiate  not  the  assured  and  useful 
improvements  of  our  age,  but  devoutly  wish  affairs  of  State  to 
take  a  safer  course  than  they  are  now  taking,  and  to  rest  on  a 
more  firm  foundation  without  injury  to  the  true  freedom  of  the 
people;  for  the  best  parent  and  guardian  of  liberty  amongst 
men  is  truth.     The  truth  shall  make  you  free.     (John  viii,  32.) 

If  in  the  difficult  times  in  which  our  lot  is  cast.  Catholics  will 
give  ear  to  Us,  as  it  behooves  them  to  do,  they  will  readily  see 
what  are  the  duties  of  each  one  in  matters  of  opinion  as  well  as 
action.  As  regards  opinion,  whatever  the  Roman  Pontiffs  have 
hitherto  taught,  or  shall  hereafter  teach,  must  be  held  with  a 
firm  grasp  of  mind,  and,  so  often  as  occasion  requires,  must  be 
openly  professed. 

Especially  with  reference  to  the  so-called  "Liberties"  which  are 
so  greatly  coveted  in  these  days,  all  must  stand  by  the  judgment 
of  the  Apostolic  See,  and  have  the  same  mind.  Let  no  man  be 
deceived  by  the  outward  appearance  of  these  liberties,  but  let 
each  one  reflect  whence  these  have  had  their  origin,  and  by  what 
efforts  they  are  everywhere  upheld  and  promoted.  Experience 
has  made  us  well  acquainted  with  their  results  to  the  State, 


22  STATE  AND  CHURCH 

since  everywhere  they  have  borne  fruits  which  the  good  and 
wise  bitterly  deplore.  If  there  really  exist  anywhere,  or  if  we 
in  imagination  conceive,  a  State,  waging  wanton  and  tyrannical 
war  against  Christianity  and  if  we  compare  with  it  the  modern 
form  of  government  just  described,  this  latter  may  seem  the 
more  endurable  of  the  two.  Yet,  undoubtedly,  the  principles 
on  which  such  a  government  is  grounded  are,  as  We  have  said, 
of  a  nature  which  no  one  can  approve. 

Secondly,  action  may  relate  to  private  and  domestic  matters, 
or  to  matter  public.  As  to  private  affairs,  the  first  duty  is  to 
conform  life  and  conduct  to  the  gospel  precepts,  and  to  refuse 
to  shrink  from  this  duty  when  Christian  virtue  demands  some 
sacrifice  difficult  to  make.  All,  moreover,  are  bound  to  love  the 
Church  as  their  common  mother,  to  obey  her  laws,  promote  her 
honor,  defend  her  rights,  and  to  endeavor  to  make  her  respected 
and  loved  by  those  over  whom  they  have  authority.  It  is  also 
of  great  moment  to  the  public  welfare  to  take  a  prudent  part 
in  the  business  of  municipal  administration,  and  to  endeavor 
above  all  to  introduce  effectual  measures,  so  that,  as  becomes  a 
Christian  people,  public  provision  may  be  made  for  the  instruc- 
tion of  youth  in  religion  and  true  morality.  Upon  these  things 
the  well-being  of  every  State  greatly  depends. 

Furthermore,  it  is  in  general  fitting  and  salutary  that 
Catholics  should  extend  their  efforts  beyond  this  restricted 
sphere,  and  give  their  attention  to  national  politics.  We  say 
in  general,  because  these  Our  precepts  are  addressed  to  all 
nations.  However,  it  may  in  some  places  be  true  that,  for  most 
urgent  and  just  reasons,  it  is  by  no  means  expedient  for  Catholics 
to  engage  in  public  affairs  or  to  take  an  active  part  in  politics. 
Nevertheless,  as  We  have  laid  down,  to  take  no  share  in  public 
matters  would  be  equally  as  wrong  (We  speak  in  general)  as 
not  to  have  concern  for,  or  not  to  bestow  labor  upon,  the  com- 
mon good.  And  this  all  the  more  because  Catholics  are 
admonished,  by  the  very  doctrines  which  they  profess,  to  be 
upright  and  faithful  in  the  discharge  of  duty,  while  if  they  hold 
aloof,  men  whose  principles  offer  but  small  guarantee  for  the 
welfare  of  the  State  will  the  more  readily  seize  the  reins  of 
government.      This    would    tend    also    to    the    injury    of    the 


THE  CHRISTIAN  CONSTITUTION  OF  STATES      23 

Christian  religion,  forasmuch  as  those  would  come  into  power 
who  are  badly  disposed  towards  the  Church,  and  those  who  are 
willing  to  befriend  her  would  be  deprived  of  all  influence. 

It  follows  therefore  clearly  that  Catholics  have  just  reasons  for 
taking  part  in  the  conduct  of  public  affairs.*^' 

For  in  so  doing  they  assume  not  the  responsibility  of  approv- 
ing what  is  blameworthy  in  the  actual  methods  of  government, 
but  seek  to  turn  these  very  methods,  so  far  as  possible,  to  the 
genuine  and  true  public  good,  and  to  use  their  best  endeavors 
at  the  same  time  to  infuse,  as  it  were,  into  all  the  veins  of  the 
State  the  healthy  sap  and  blood  of  Christian  wisdom  and 
virtue.  The  morals  and  ambitions  of  the  heathens  differed 
widely  from  those  of  the  Gospel,  yet  Christians  were  to  be  seen 
living  undefiled  everywhere  in  the  midst  of  pagan  superstition, 
and,  while  always  true  to  themselves,  coming  to  the  front  boldly 
wherever  an  opening  was  presented.  Models  of  loyalty  to  their 
rulers,  submissive,  so  far  ,as  was  permitted,  to  the  sovereign 
power,  they  shed  around  them  on  every  side  a  halo  of  sanctity ; 
they  strove  to  be  helpful  to  their  brethern,  and  to  attract  others 
to  the  wisdom  of  Jesus  Christ,  yet  were  bravely  ready  to  with- 
draw from  public  life,  nay,  even  to  lay  down  their  life,  if  they 
could  not  without  loss  of  virtue  retain  honors,  dignities,  and 
oflSces.  For  this  reason  Christian  ways  and  manners  speedily 
found  their  way  not  only  into  private  houses  but  into  the  camp, 
the  senate,  and  even  into  the  imperial  palaces.  "We  are  but 
of  yesterday,"  wrote  Tertullian,  "yet  we  swarm  in  all  your 
institutions,  we  crowd  your  cities,  islands,  villages,  towns, 
assemblies,  the  army  itself,  your  wards  and  corporations,  the 
palace,  the  senate,  and  the  law  courts."  So  that  the  Christian 
faith  when  once  it  became  lawful  to  make  public  profession  of 
the  Gospel,  appeared  in  most  of  the  cities  of  Europe,  not  like 
an  infant  crying  in  its  cradle,  but  already  grown  up  and  full 
of  vigor. 

In  these  our  days  it  is  well  to  revive  these  examples  of  our  fore- 
fathers. First  and  foremost  it  is  the  duty  of  all  Catholics 
worthy  of  the  name  and  wishful  to  be  known  as  most  loving 
children  of  the  Church,  to  reject  without  swerving  whatever 

"See  Ch.  II,  s.  15. 


24  STATE  AND  CHURCH 

is  inconsistent  with  so  fair  a  title;  to  make  use  of  popular  insti- 
tutions, so  far  as  can  honestly  be  done,  for  the  advancement  of 
truth  and  righteousness;  to  strive  that  liberty  of  action  shall 
not  transgress  the  bounds  marked  out  by  nature  and  the  law 
of  God ;  to  endeavor  to  bring  back  all  civil  society  to  the  pattern 
and  form  of  Christianity  which  We  have  described.  It  is  barely 
possible  to  lay  down  any  tixed  method  by  which  such  purposes 
are  to  be  attained,  because  the  means  adopted  must  suit  places 
and  times  widely  differing  from  one  another.  Nevertheless, 
above  all  things,  unity  of  aim  must  be  preserved,  and  similarity 
must  be  sought  after  in  all  plans  of  action.  Both  these  objects 
will  be  carried  into  effect  without  fail  if  all  will  follow  the 
guidance  of  the  Apostolic  See  as  their  rule  of  life  and  obey 
the  bishops  whom  the  Holy  Ghost  has  placed  to  rule  the  Church 
of  God.  (Acts  XX,  28.)  The  defence  of  Catholicism,  indeed, 
necessiarily  demands  that  in  the  profession  of  doctrines  taught 
by  the  Church  all  shal  be  of  one  mind  and  all  steadfast  in 
believing;  and  care  must  be  taken  never  to  connive,  in  any 
way,  at  false  opinions,  never  to  withstand  them  less  strenously 
than  truth  allows.  In  mere  matters  of  opinion  it  is  permissible 
to  discuss  things  with  moderation,  with  a  desire  of  searching 
into  the  truth,  without  unjust  suspicion  or  angry  recriminations. 

Hence,  lest  concord  be  broken  by  rash  charges,  let  this  be  un- 
derstood by  all,  that  the  integrity  of  Catholic  faith  cannot  be 
reconciled  with  opinions  verging  on  Naturalism  or  Rationalism, 
the  essence  of  which  is  utterly  to  sterilize  Christianity,  and  to 
install  in  society  the  supremacy  of  man  to  the  exclusion  of  God. 
Further,  it  is  unlawful  to  follow  one  line  of  conduct  in  private 
and  another  in  public,  respecting  privately  the  authority  of  the 
Church,  but  publicly  rejecting  it;  for  this  would  amount  to 
joining  together  good  and  evil,  and  to  putting  man  in  conflict 
with  himself;  whereas  he  ought  always  to  be  consistent,  and 
never  in  the  least  point  nor  in  any  condition  of  life  to  swerve 
from  Christian  virtue. 

But  in  matters  merely  political,  as  for  instance  the  best  form 
of  government,  and  this  or  that  system  of  administration,  a 
difference  of  opinion  is  lawful.  Those,  therefore,  whose  piety 
is  in  other  respects  known,  and  whose  minds  are  ready  to  accept 


THE  CHRISTIAN  CONSTITUTION  OF  STATES      25 

in  all  obedience  the  decress  of  the  Apostolic  See,  cannot  in 
justice  be  accounted  as  bad  men  because  they  disagree  as  to 
subjects  We  have  mentioned ;  and  still  graver  wrong  will  be 
done  them,  if — as  We  have  more  than  once  perceived  with  regret 
— they  are  accused  of  violating,  or  of  wavering  in,  the  Catholic 
faith. 

Let  this  be  weill  borne  in  mind  by  all  who  are  in  the  habit 
of  publishing  their  opinions,  ajid  above  all  by  journalists.  In 
the  endeavor  to  secure  interests  of  the  highest  order  there  is  no 
room  for  internal  strife  or  party  rivalries;  since  all  should 
aim  with  one  mind  and  purpose  to  make  safe  that  which  is  the 
common  object  of  all — the  maintenance  of  Religion  and  of  the 
State.  If,  therefore,  there  have  hitherto  been  dissensions,  let 
them  henceforth  be  g*ladly  buried  in  oblivion.  If  rash  or 
injurious  acts  have  been  committed,  whoever  may  have  been  at 
fault,  let  mutual  charity  make  amends,  and  let  the  past  be 
redeemed  by  a  special  submission  of  all  to  the  Apostolic  See. 

In  this  way  Catholics  will  attain  two  most  excellent  results : 
they  will  become  helpers  to  the  Church  in  preserving  and  propa- 
gating Christian  wisdom;  and  they  will  confer  the  greatest 
benefit  on  civil  society,  the  safety  of  which  is  exceedingly 
imperilled  by  evil  teachings  and  bad  passions. 

This,  Venerable  Brethren,  is  what  We  have  thought  it  Our 
duty  to  expound  to  aill  nations  of  the  Catholic  world  touching  the 
Christian  constitution  of  States  and  the  duties  of  individual 
citizens. 

It  behooves  Us  now  with  earnest  prayer  to  implore  the  pro- 
tection of  Heaven,  beseeching  God,  who  alone  can  enlighten  the 
minds  of  men  and  move  their  will,  to  bring  about  those  happy 
ends  for  which  We  yearn  and  strive,  for  His  greater  glory  and 
the  general  salvation  of  mankind.  As  a  happy  augury  of  the 
divine  benefits,  and  in  token  of  Our  paternal  benevolence,  to 
you,  Venerable  Brothers,  and  to  the  clergy  and  to  the  whole 
people  committed  to  your  charge  and  vigilance.  We  grant 
lovingly  in  the  Lord  the  Apostolic  Benediction. 


2.     COMMENTS  ON  THE  "CHRISTIAN  CONSTITUTION 

OF  STATES" 

By  Rev.  John  A.  Ryan,  D.D. 

1.     (p.  3)     The  Moral  Authority  op  Governments 

The  principle  laid  down  in  this  paragraph  is  sometimes  con- 
fused by  ignorant  persons  with  the  theory  of  "the  divine  right 
of  kings. ' '  The  resemblance  between  the  two  doctrines  is  entirely 
superficial.  In  its  logical  and  best  known  form,  the  latter 
doctrine  comes  down  to  us  from  King  James  I,  of  England. 
He  maintained  that  his  right  to  rule  was  conferred  upon  him 
by  God  directly  and  positively.  That  is  to  say,  God  did  not 
bestow  that  power  upon  the  king  because  the  latter  was  desig- 
nated by  the  people,  nor  because  he  was  the  constitutional 
heir  to  the  throne,  nor  on  account  of  any  other  fact,  event,  or 
situation.  God  selected  and  gave  authority  to  the  King 
(James  I  and  every  other  king)  by  direct  and  positive  action, 
independentl}^  of  human  wills  or  institutions,  just  as  he  chose 
and  empowered  Saul  to  rule  over  Israel.  (See  The  Political 
Works  of  James  I.  Harvard  University  Press;  1918.)  Hence 
the  king  rules  by  divine  right  in  the  complete  sense  of  that 
phrase.  The  refutation  of  this  theory,  and  the  statement  of  the 
Catholic  theory  concerning  the  manner  in  which  moral  authority 
is  conferred  upon  the  ruler,  are  presented  in  subsequent  pages 
of  this  volume. 

In  the  paragraph  that  we  are  discussing.  Pope  Leo  declares 
that  the  authority  to  rule  comes  from  God,  indeed,  but  points 
out  that  it  arrives  by  way  of  nature.  It  is  not  conferred  by 
a  divine  act  of  supernatural  intervention,  as  asserted  by  King 
James.  Ruling  authority,  divinely  sanctioned,  comes  into 
existence  as  a  necessary  consequence  of  the  nature  and  end  of 

26 


COMMENTS  ON  "CHRISTIAN  CONSTITUTION"     27 

human  beings.  They  cannot  live  right  and  reasonable  lives 
without  civil  society;  civil  society  cannot  function  effectively 
without  a  governing  authority;  therefore,  the  latter,  just  like 
political  society  itself,  is  necessary  for  human  welfare,  and  con- 
sequently sanctioned  and  ratified  by  the  Creator  and  Governor 
of  the  human  race.  Hence  the  political  ruler  has  true  moral 
authority  to  govern,  and  the  citizens  or  subjects  have  a  moral 
obligation  to  obey. 

The  authority  and  ordinances  of  the  rulers  of  a  State  are 
quite  different  from  the  authority  and  regulations  of  the 
president  of  a  literary  soeiety  or  the  leader  of  a  whist  club. 
Civil  laws  are,  generally  speaking,  binding  in  conscience,  for 
the  simple  reason  that  they  proceed  from  functionaries  who  hold 
power  from  God,  ''the  Sovereign  Ruler  of  all."  Since  only 
God  has  the  authority  to  impose  moral  obligation  upon  human 
beings,  political  rulers  can  enact  morally  obligatory  ordinances 
only  because  their  authority  is  derived  from  Him.  In  this 
doctrine  the  authority  of  the  government  and  the  obligations 
of  the  governed  are  placed  far  above  considerations  of  mere 
expediency,  of  arbitrary  caprice,  or  of  physical  might.^ 

Whether  the  authority  of  the  political  ruler,  as  thus  ex- 
pounded, may  be  called  a  "divine  right,"  is  objectively  a 
question  of  language.  In  itself  the  phrase  is  not  inappropriate. 
Owing,  however,  to  its  association  with  the  false  and  decidedly 
unpopular  theory  of  James  I,  it  should  be  avoided  and  repudi- 

* ' '  The  true  remedy  for  many  of  the  disorders  with  which  we  are  troubled, 
is  to  be  found  in  a  clearer  understanding  of  civil  authority.  Rulers  and 
people  alike  must  be  guided  by  the  truth  that  the  State  is  not  merely  an 
invention  of  human  forethought,  that  its  power  is  not  created  by  human 
agreement  or  even  by  nature's  device.  Destined  as  we  are  by  our  Maker 
to  live  together  in  social  intercourse  and  mutual  co-operation  for  the  ful- 
filment of  our  duties,  the  proper  development  of  our  faculties  and  the 
adequate  satisfaction  of  our  Avants,  our  association  can  be  orderly  and 
prosperous  only  when  the  wills  of  the  many  are  directed  by  that  moral 
power  which  we  call  authority.  This  is  the  unifying  and  eo-ordinating 
principle  of  the  social  structure.  It  has  its  origin  in  God  alone.  In  whom 
it  shall  be  vested  and  by  whom  exercised,  is  determined  in  various  ways, 
sometimes  by  the  outcome  of  circumstances  and  providential  events,  some- 
times by  the  express  will  of  the  people.  But  the  right  which  it  possesses 
to  legislate,  to  execute  and  administer,  is  derived  from  God  himself." — 
(From  the  Pastoral  Letter  of  the  American  Hierarchy,  1920.) 


28  STATE  AND  CHURCH 

ated  by  all  who  reject  that  theory.  Moreover,  we  must  remem- 
ber that  the  "divine  right"  to  govern,  in  the  explanation  of 
Pope  Leo,  attaches  quite  as  truly  to  the  president  of  a  republic 
as  to  the  head  of  a  monarchy. 

The  principal  concern  of  Pope  Leo  in  this  paragraph  is  not 
to  show  precisely  how  moral  authority  is  conferred  upon  a 
ruler  or  government,  but  rather  to  point  out  the  fact  and  the 
nature  of  that  authority.  For  the  right  ordering  of  human  life 
it  is  necessary  that  civil  society  should  exist,  that  government 
should  function,  and  that  governmental  ordinances  should 
impose  moral  obligations.  That  is  all  that  Pope  Leo  says  con- 
cerning the  manner  in  which  moral  authority  comes  to  the 
ruler.  The  conditions  that  are  necessary  to  justify  the  posses- 
sion and  exercise  of  political  power  by  any  individual  or  group 
of  individuals, — whether  there  must  be  a  popular  election  or 
some  other  manifestation  of  the  will  of  the  people,  whether 
certain  constitutional  forms  must  be  observed,  whether  the 
ruler  derives  his  credentials  from  a  happy  concatenation  of 
events, — are  ques-tions  that  Pope  Leo  does  not  touch  in  this 
place.  Nor  does  he  assert  or  imply  that  every  actual  ruler  is 
legitimate  and  therefore  possessed  of  moral  authority.  He 
merely  assumes  the  case  of  a  government  that  is  legitimately 
established,  and  points  out  the  moral  character  of  its  authority. 
His  statements  are  directed  against  those  who  would  deny  the 
ethical  nature  of  political  power,  not  against  any  particular 
theory  of  the  way  in  which  it  legitimately  reaches  the  ruler. 

2.     (p.  3)     Various  Forms  op  Government 

Two  important  principles  are  contained  in  the  first  two 
sentences  of  this  paragraph.  None  of  the  three  classical  forms 
of  government  (monarchy,  aristocracy,  democracy)  nor  any  of 
their  modifications  or  combinations,  is  morally  unlawful  or 
unfavorably  regarded  by  the  Catholic  Church.  It  is  true  that 
many  Catholic  writers  have  defended  the  monarchical  as  superior 
to  the  other  forms,  but  the  Church  has  never  officially  sanctioned 
such  a  view,  nor  formally  expressed  a  preference  for  any  of  the 
other  polities. 


COMMENTS  ON  "CHRISTIAN  CONSTITUTION"     29 

The  second  important  principle  in  this  statement  of  Pope 
Leo  concerns  the  supreme  test  of  a  good  form  of  government. 
That  test  is  the  general  welfare.  Since  this  is  the  end  of  all 
government,  any  form  of  polity  that  promotes  it  in  any  given 
circumstance  is  morally  legitimate  and  reasonable.  By  impli- 
cation, therefore,  a  form  of  government  which  is  destructive 
of  the  general  welfare  is  not  legitimate  and  ought,  through 
lawful  means,  to  be  supplanted  by  some  other  form  which  will 
attain  the  true  end  of  a  political  society. 

3.   (p.  4)     Public  Profession  of  Religion  by  the  State 

To  the  present  generation  this  is  undoubtedly  '  *  a  hard  saying. ' ' 
The  separation  of  Church  and  State,  which  obtains  substantially 
in  the  majority  of  countries,  is  generally  understood  as  for- 
bidding the  State  to  make  ''a  public  profession  of  religion." 
Neverthelesis,  the  logic  of  Pope  Leo's  argument  is  unassailable. 
Men  are  obliged  to  worship  God,  not  only  as  individuals,  but 
also  as  organized  groups.  Societies  have  existence  and  functions 
over  and  above  the  existence  and  functions  of  their  individual 
members.  Therefore,  they  are  dependent  upon  God  for  their 
corporate  existence  and  functions,  and  as  moral  persons  owe 
corporate  obedience  to  His  laws,  formal  recognition  of  His 
authority,  and  appropriate  acts  of  worship.  To  deny  these 
propositions  is  to  maintain  the  illogical  position  that  man  owes 
God  religious  worship  under  only  one  aspect  of  his  life,  in  only 
one  department  of  his  life. 

Since  the  State  is  by  far  the  most  important  of  the  secular 
societies  to  which  man  belongs,  its  obligation  to  recognize  and 
profess  religion  is  considerably  greater  and  stricter  than  is 
the  ease  with  the  lesser  societies.  And  the  failure  of  the  State 
to  discharge  this  obligation  produces  evil  results  of  correspond- 
ing gravity.  It  exhibits  in  most  extensive  proportions  the 
destructive  power  of  bad  example.^ 

' ' '  The  State  itself  should  be  the  first  to  appreciate  the  importance  of 
religion  for  the  preservation  of  the  common  weal.  It  can  ill  afford  at  any 
time,  and  least  of  all  in  the  present  condition  of  the  world,  to  reject  the 
assistance  which  Christianity  offers  for  the  maintenance  of  peace  and 
order.     'Let  princes  and  rulers  of  the  people,'  says  Pope  Benedict  XV, 


30  STATE  AND  CHURCH 

The  logic  of  Pope  Leo's  positian  receives  strong  confirmation 
from  the  attempts  that  have  been  made  to  enforce  consistently 
the  opposite  theory.  In  governments  which  profess  absolute 
neutrality  toward  religion,  the  actual  policy  is  one  of  hostility. 
This  is  shown  in  a  hundred  ways  (some  of  them  open  and  some 
quite  subtle)  in  the  recent  history  of  France,  and  of  some  of 
the  countries  south  of  the  United  States.  Such  a  policy  is  logi- 
cally defensible  on  no  theory  except  Atheism.  It  is  conceivable 
that  a  State  might  explicitly  adopt  the  opinion  that  there  is 
no  God,  and  therefore  prohibit  divine  worship  as  injurious  to 
the  public  welfare.  The  practice  of  repression  would  follow 
logically  from  the  theoretical  position.  But  the  persecuting 
governments  to  which  reference  has  just  been  made,  have  not 
had  the  courage,  or  the  hardihood,  to  support  their  practical 
policy  by  a  frank  avowal  of  the  corresponding  theory.  As  a 
consequence,  they  exhibit  a  contradiction  between  theory  and 
practice,  and  demonstrate  the  impossibility  and  unveracity  of 
the  theory  of  neutrality. 

The  State  cannot  avoid  taking  an  attitude  toward  religion. 
In  practice  that  attitude  will  necessarily  be  positive,  either  for 
or  against.  There  ean  be  no  such  actual  policy  as  impartial 
indifference. 

This  proposition  receives  further  confirmation  from  the  atti- 
tude of  those  States  which  refrain  from  any  formal  acceptance 
of  religion  in  theory,  and  yet  accord  it  some  measure  of  recogni- 

*  bear  this  in  mind  and  bethink  themselves  whether  it  be  wise  and  salutary, 
either  for  public  authority  or  for  the  nations  themselves,  to  set  aside  the 
holy  religion  of  Jesus  Christ,  in  which  that  very  authority  may  find  such 
powerful  support  and  defense.  Let  them  seriously  consider  whether  it  be 
the  part  of  political  wisdom  to  exclude  from  the  ordinance  of  the  State 
and  from  public  instruction,  the  teaching  of  the  Gospel  and  of  the  Church. 
Only  too  well  does  experience  show  that  when  religion  is  banished,  human 
authority  totters  to  its  fall.  That  which  happened  to  the  first  of  our  race 
when  he  failed  in  his  duty  to  G-od,  usually  happens  to  nations  as  well. 
Scarcely  had  the  will  in  him  rebelled  against  God  when  the  passions  arose 
in  rebellion  against  the  will ;  and  likewise,  when  the  rulers  of  the  people 
disdain  the  authority  of  God,  the  people  in  turn  despise  the  authority  of 
men.  There  remains,  it  is  true,  the  usual  expedient  of  suppressing  rebell- 
ion by  force;  but  to  what  effect?  Force  subdues  the  bodies  of  men,  not 
their  souls'  "  (Encyc,  Ad  beatissimi,  November  1,  1914). — From  the 
Pastoral  Letter  of  the  American  Hierarchy,  1920. 


COMMENTS  ON  "CHRISTIAN  CONSTITUTION"     31 

tion  in  practice.  The  policy  of  the  United  States  is  the  most 
conspicuous  and  sigrnificant.  Our  Federal  and  State  constitu- 
tions forbid  the  leofal  establishment  of  any  form  of  religion, 
thereby  ensuring  the  separation  of  Church  and  State,  and 
apparently  making  inevitable  a  policy  of  neutrality  or  indiffer- 
ence. Nevertheless,  our  Federal  and  State  governments  have 
never  adopted  such  a  policy.  Their  attitude  has  heen  one  of 
positive  friendliness  toward  religion.  Some  of  the  manifes-ta- 
tions  and  expressions  of  this  policy  are :  The  appointment  of  an 
annual  day  of  public  thanksgiving  by  the  President  of  the 
United  States  and  the  Governors  of  the  several  States;  the 
employment  of  chaplains  to  open  with  prayer  the  sessions  of 
the  National  and  State  legisilatures ;  the  provision  of  chaplains 
for  the  Army  and  Navj^ ;  the  exemption  of  church  property  from 
taxation ;  the  general  policy  of  promoting  the  interests  of 
religion,  and  many  other  acts  and  practices,  for  example,  the 
recent  action  of  the  school  board  of  New  York  City  in  placing 
the  school  buildings  at  the  disposal  of  the  various  denominations 
for  the  purpose  of  giving  religious  instruction. 

These  institutions  and  practices  are  in  fact  what  Pope  Leo 
calls  "a  public  profession  of  religion."  As  compared  with  the 
degree  of  recognition  accorded  in  a  formal  union  of  Church 
and  State,  they  are,  indeed,  feeble  and  inconspicuous.  Never- 
theless, they  do  exemplify  the  principle.  "The  public  pro- 
fession of  religion,"  is  susceptible  of  very  many  forms  and 
degrees,  from  the  adoption,  support,  and  toleration  of  only 
one  creed,  to  the  slight  manifestations  of  recognition  shown  by 
countries  which  do  not  go  even  as  far  as  the  United  States. 

It  is  not  here  contended  that  the  latter  kind  of  attitude  is 
normal,  or  desirable  in  the  abstract.  The  point  to  be  kept  in 
mind  is  that  the  principle  laid  down  by  Pope  Leo  is  not  to  be 
contrasted  with  the  policy  of  separation  of  Church  and  State. 
His  principle  is  directly  and  universally  opposed  only  to  a 
policy  of  specious  neutrality,  which  in  practice  is  always  a 
policy  of  hostility.  To  assume  that  "the  public  profession  of 
religion"  always  calls  for  something  radically  ditferent  from 
the  arrangement  obtaining  in  the  United  States  is  to  be  guilty 
of  confused  thinking  and  to  ignore  important  facts  of  experience. 


32  STATE  AND  CHURCH 

4.     (p.  4)     Attitude  of  the  State  Toward  the  Church 

But  Pope  Leo  goes  further.  He  declares  that  the  State  must 
not  only  "have  care  for  religion,"  but  recognize  the  true 
religion.  This  means  the  form  of  religion  professed  by  the 
Catholic  Church.  It  is  a  thoroughly  logical  position.  If  the 
State  is  under  moral  compulsion  to  profess  and  promote  religion, 
it  is  O'bviously  obliged  to  profess  and  promote  only  the  religion 
that  is  true;  for  no  individual,  no  group  of  individuals,  no 
society,  no  State  is  justified  in  supporting  error  or  in  according 
to  error  the  same  recognition  as  to  truth.^ 

Those  who  deny  this  principle  may  practically  all  be  included 
within  three  classes:  First,  those  who  hold  that  truth  will  by 
its  own  power  speedily  overcome  error,  and  that  the  State  should 
consequently  assume  an  attitude  of  impartiality  toward  both; 
second,  those  who  assume  that  all  forms  of  religion  are  equally 
good  and  true ;  third,  those  who  hold  that  it  is  impossible  to 
know  which  is  the  true  one.  The  first  theory  is  contradicted 
and  refuted  by  the  persistence  of  a  hundred  errors  side  by  side 
with  truth  for  centuries.  In  the  long  run  and  with  sufficient 
enlightenment,  truth  will  be  sufficiently  mighty  to  prevail  by 
its  own  force  and  momentum,  but  its  victory  can  be  greatly 
hastened  by  judicious  assistance  from  the  State  and,  indeed, 
from  every  other  kind  of  organized  social  power.  The  success- 
ful opposition  of  the  Church  to  the  Protestant  Reformation  in 
those  countries  where  the  Church  had  the  sympathy  and  assist- 
ance of  the  State,  is  but  one  of  a  vast  number  of  historical 
illustrations.  Against  the  theory  that  all  forms  of  religion  are 
equally  sound,  it  is  sufficient  to  cite  the  principle  of  contra- 
diction ;  two  contradictory  propositions  cannot  be  true,  any 
more  than  yes  can  be  identified  with  no.  Finally,  it  is  not 
impossible  to  know  which  religion  is  the  right  one,  inasmuch  as 
the  Church  of  Christ  comes  before  men  with  credentials  sufficient 
to  convince  all  those  who  will  deliberately  examine  the  evidence 
with,  a  will  to  believe.  The  argument  and  the  proofs  are  sum- 
marized by  Pope  Leo  in  the  paragraphs  immediately  following 

*  Cf.  Cardinal  Billot,  De  Ecclesia  Christi,  qu.  xix,  which  is  a  recent  and 
comprehensive  presentation  of  the  whole  subject. 


COMMENTS  ON  "CHRISTIAN  CONSTITUTION"     33 

the  one  now  under  consideration.  Such  is  the  objective  logic  of 
the  situation.  In  a  particular  case  the  public  authorities  can 
reject  and  frequently  have  rejected  the  evidence  for  the  divinity 
of  the  Catholic  Church. 

It  is  not  of  such  rulers  or  such  States  that  Pope  Leo  is  speak- 
ing in  this  part  of  the  encyclical.  The  principle  that  he  is  here 
defending  has  complete  and  unconditional  application  only  to 
Catholic  States.  Between  these  and  the  Catholic  Church  the 
normal  relation  is  that  of  formal  agreement  and  mutual  sup- 
port; in  other  words,  what  is  generally  known  as  the  union 
of  Church  and  State.  In  his  encyclical  on  "Catholicity  in  the 
United  States,"  the  same  Pope  gave  generous  praise  to  the 
attitude  of  our  government  and  laws  toward  religion,  but 
immediately  added : 

"Yet,  though  all  this  is  time,  it  would  be  very  erroneous  to 
draw  the  conclusion  that  in  America  is  to  be  sought  the  type 
of  the  most  desirable  status  of  the  Church,  or  that  it  would  be 
universally  lawful  or  expedient  for  State  and  Church,  to  be, 
as  in  America,  dissevered  and  divorced.  The  fact  that  Catho- 
licity with  you  is  in  good  condition,  nay,  is  even  enjoying  a 
prosperous  growth,  is  by  all  means  to  be  attributed  to  the 
fecundity  with  which  God  has  endowed  His  Church,  in  virtue 
of  which  unless  men  or  circumstances  interfere,  she  spontant- 
ously  expands  and  propagates  herself;  but  she  would  bring 
forth  more  abundant  fruits  if,  in  addition  to  liberty,  she  enjoyed 
the  favor  of  the  laws  and  the  patronage  of  public  authority." 

Occasionally  some  Catholics  are  found  who  reject  this  doctrine 
on  the  ground  that  alliances  between  Church  and  State  have 
done  more  harm  than  good.  Space  is  wanting  here  for  an 
adequate  discussion  and  refutation  of  this  contention.  Nor  is 
a  formal  criticism  necessary.  Men  who  take  this  position  are 
indulging  in  what  the  logicians  call  ''the  fallacy  of  the  par- 
ticular instance."  Because  they  find  some  forms  of  union 
between  Church  and  State  working  badly  in  some  countries  for 
certain  periods  of  time,  they  rush  to  the  conclusion  that  all 
forms  are  bad,  at  all  times,  in  all  countries.  An  adequate 
evaluation  of  the  arrangement,  a  judicious  weighing  of  the  good 
effects  against  the  bad  effects,  supposes  a  knowledge  of  history 


34  STATE  AND  CHURCH 

far  more  comprehensive  than  is  possessed  by  any  of  these  critics. 
Men  who  lack  this  knowledge  ought  to  show  a  becoming  modesty 
and  hesitancy  in  making  any  general  pronouncement  on  the 
complex  effects  of  this  policy. 

One  observation  may  be  made  which  is  calculated  to  prevent 
much  misconception  and  false  reasoning  on  this  subject.  It  is 
that  the  principle  of  union  between  Church  and  State  is  not 
necessarily  dependent  upon  any  particular  form  of  union  that 
has  actually  been  in  operation.  When  men  condemn  the  prin- 
ciple because  they  see  that  State  support  of  the  clergy,  or  State 
nomination  of  bishops,  has  in  certain  cases  been  harmful  to  the 
Church,  they  are  laboring  under  a  false  assumption.  Neither 
of  these  particular  arrangements  is  required  by  the  principle. 
Other  critics  identify  the  principle  with  the  particular  applica- 
tion of  it  that  obtained  in  the  Middle  Ages.  This  assumption  is 
likewise  illogical  and  incorrect.  The  distinguished^  German 
theologian,  Father  Pohle,  writes  thus:  ''The  intimate  con- 
nection of  both  powers  during  the  Middle  Ages  was  only  a 
passing  and  temporary  phenomenon,  arising  neither  from  the 
essential  nature  of  the  State  nor  from  that  of  the  Church."* 
In  the  same  article,  he  points  out  three  grave  evil  results  of 
this  intimate  connection  ;  namely,  excessive  meddling  by  ecclesias- 
tical authorities  in  political  affairs,  conflicts  between  the  two 
powers  which  produced  diminished  popular  respect  for  both, 
and  "the  danger  that  the  clergy,  trusting  blindly  to  the  inter- 
ference of  the  secular  arm  in  their  behalf,  may  easily  sink 
into  dull  resignation  and  spiritual  torpor,  while  the  laity,  owing 
to  the  religious  surveillance  of  the  State,  may  develop  rather 
into  a  race  of  religious  hypocrites  and  pietists  than  into  inwardly 
convinced  Christians." 

All  that  is  essentially  comprised  in  the  union  of  Church  and 
State  can  be  thus  formulated:  The  State  should  officially 
recognize  the  Catholic  religion  as  the  religion  of  the  common- 
wealth; accordingly  it  should  invite  the  blessing  and  the 
ceremonial  participation  of  the  Church  for  certain  important 
public  functions,  as  the  opening  of  legislative  sessions,  the  erec- 
tion of  public  buildings,  etc.,  and  delegate  hs  officials  to  attend 

*  Catholic  Encyclopedia.     Article,  "Toleration." 


COMMENTS  ON  "CHRISTIAN  CONSTITUTION"     35 

certain  of  the  more  important  festival  celebrations  of  the 
Church ;  it  should  recognize  and  sanction  the  laws  of  the 
Church;  and  it  should  protect  the  rights  of  the  Church,  and 
the  religious  as  well  as  the  other  rights  of  the  Church 's  members. 

Does  State  recognition  of  the  Catholic  religion  necessarily 
imply  that  no  other  religion  should  be  tolerated  ?  Much  depends 
upon  circumstances  and  much  depends  upon  what  is  meant  by 
toleration.  Neither  unbaptized  persons  nor  those  born  into  a 
non-Catholic  sect,  should  ever  be  coerced  into  the  Catholic 
Church.  This  would  be  fundamentally  irrational,  for  belief 
depends  upon  the  will  and  the  will  is  not  subject  to  physical 
compulsion.  Should  such  persons  be  permitted  to  practice  their 
own  form  of  worship  ?  If  these  are  carried  on  within  the  family, 
or  in  such  an  inconspicuous  manner  as  to  be  an  occasion  neither 
of  scandal  nor  of  perversion  to  the  faithful,  they  may  properly 
be  tolerated  by  the  State.  At  least,  this  is  the  approved  Catholic 
doctrine  concerning  the  religious  rites  of  the  non-baptized.  Only 
those  religious  practices  of  unbelievers  which  are  contrary  to 
the  natural  law,  such  as  idolatry,  human  sacrifice  and  debauch- 
ery, should  be  repressed.''  The  best  indication  of  the  Church's 
attitude  on  this  question  is  the  toleration  and  protection  accorded 
all  through  the  Middle  Ages  to  Judaism  and  Jewish  worship  by 
the  Popes  in  their  capacity  of  civil  rulers  of  the  Papal  States. 
The  same  principle  regarding  freedom  of  worship  seems  fairly 
applicable  to  baptized  persons  who  were  born  into  a  non- 
Catholic  sect.  For  their  participation  in  false  worship  does 
not  necessarily  imply  a  wilful  affront  to  the  true  Church  nor 
a  menace  to  public  order  or  social  welfare.  In  a  Catholic  State 
which  protects  and  favors  the  Catholic  religion  and  whose 
citizens  are  in  great  majority  adherents  of  the  true  faith,  the 
religious  performances  of  an  insignificant  and  ostracized  sect 
will  constitute  neither  a  scandal  nor  an  occasion  of  perversion 
to  Catholics.  Hence  there  exists  no  sufficient  reason  to  justify 
the  State  in  restricting  the  liberty  of  individuals. 

Quite  distinct  from  the  performance  of  false  religious  worship 
and  preaching  to  the  members  of  the  erring  sect,  is  the  propaga- 
tion of  the  false  doctrine  among  Catholics.     This  could  become 

•Cf.  Suarez,  De  Fide,  disp.  xviii,  sec.  4,  No.  9,  10. 


36  STATE  AND  CHURCH 

a  source  of  injury,  a  positive  menace,  to  the  religious  welfare 
of  true  believers.  Against  such  an  evil  they  have  a  right  of 
protection  by  the  Catholic  State.  On  the  one  hand,  this  propa- 
ganda is  harmful  to  the  citizens  and  contrary  to  public  welfare ; 
on  the  other  hand,  it  is  not  among  the  natural  rights  of  the 
propagandists.  Rights  are  merely  means  to  rational  ends.  Since 
no  rational  end  is  promoted  by  the  dissemination  of  false  doc- 
trine, there  exists  no  right  to  indulge  in  this  practice.  The 
fact  that  the  individual  may  in  good  faith  think  that  his  false 
religion  is  true  gives  no  more  right  to  propagate  it  than  the 
sincerity  of  the  alien  anarchist  entitles  him  to  advocate  his 
abominable  political  theories  in  the  United  States,  or  than  the 
perverted  ethical  notions  of  the  dealer  in  obscene  literature 
confer  upon  him  a  right  to  corrupt  the  morals  of  the  community. 
No  State  could  endure  on  the  basis  of  the  theory  that  the  citizen 
must  always  fee  accorded  the  prerogative  of  doing  whatever  he 
thinks  right.  Now  the  actions  of  preaching  and  writing  are  at 
once  capable  of  becoming  quite  as  injurious  to  the  community 
as  any  other  actions  and  quite  as  subject  to  rational  restraint." 
Superficial  champions  of  religious  liberty  will  promptly  and 
indignantly  denounce  the  foregoing  propositions  as  the  essence 
of  intolerance.  They  are  intolerant,  but  not  therefore  unreason- 
able. Error  has  not  the  same  rights  as  truth.  Since  the  pro- 
fession and  practice  of  error  are  contrary  to  human  welfare, 
how  can  error  have  rights?  How  can  the  voluntary  toleration 
of  error  be  justified?  As  we  have  already  pointed  out,  the 
men  who  defend  the  principle  of  toleration  for  all  varieties  of 
religious  opinion,  assume  either  that  all  religions  are  equally 
true  or  that  the  true  cannot  be  distinguished  from  the  false. 
On  no  other  ground  is  it  logically  possible  to  accept  the  theory 
of  indiscriminate  and  universal  toleration. 

"  In  its  decision  sustaining  the  law  for  the  suppression  of  polygamy  in 
Utah,  the  United  States  Supreme  Court  thus  characterized  the  propagation 
of  the  doctrine  of  polygamy:  "The  existence  of  such  a  propaganda  is  a 
blot  on  our  civilization.  The  organization  of  a  community  for  the  spread  and 
practice  of  polygamy  is,  in  a  measure,  a  return  to  barbarism.  It  is  con- 
trary to  the  spirit  of  Chrisitianity  and  of  civilization  which  Christianity 
has  produced  in  the  Western  world. ' '  Late  Corporation  of  the  Church  of 
Jesus  Christ  vs.  United  States,  136  U.  S.  1. 


COMMENTS  ON  ''CHRISTIAN  CONSTITUTION"     37 

To  the  objection  that  the  foregoing  argument  can  be  turned 
against  Catholics  by  a  non-Catholic  State,  there  are  two  replies. 
First,  if  such  a  State  should  prohibit  Catholic  worship  or 
preaching  on  the  plea  that  it  was  wrong  and  injurious  to  the 
community,  the  assumption  would  be  false ;  therefore,  the  two 
cases  are  not  parallel.  Second,  a  Protestant  State  could  not 
logically  take  such  an  attitude  (although  many  of  them  did  so 
in  former  centuries)  because  no  Protestant  sect  claims  to  be 
infallible.  Besides,  the  Protestant  principle  of  private  judg- 
ment logically  implies  that  Catholics  may  be  right  in  their 
religious  convictions,  and  that  they  have  a  right  to  hold  and 
preach  them  without  molestation. 

Such  in  its  ultimate  rigor  and  complete  implications  is  the 
Catholic  position  concerning  the  alliance  that  should  exist 
between  the  Church  and  a  Catholic  State.  While  its  doctrinal 
premises  will  be  rejected  by  convinced  non-Catholics,  its  logic 
cannot  be  denied  by  anyone  who  accepts  the  unitj^  of  religious 
truth.  If  there  is  only  one  true  religion,  and  if  its  possession 
is  the  most  important  good  in  life  for  States  as  well  as  individ- 
uals, then  the  public  profession,  protection,  and  promotion  of 
this  religion  and  the  legal  prohibition  of  all  direct  assaults 
upon  it,  becomes  one  of  the  most  obvious  and  fundamental  duties 
of  the  State.  For  it  is  the  business  of  the  State  to  safeguard 
and  promote  human  welfare  in  all  departments  of  life.  In 
the  words  of  Pope  Leo,  ''civil  society,  established  for  the  com- 
mon welfare,  should  not  only  safeguard  the  well-being  of  the 
community,  but  have  also  at  heart  the  interests  of  its  individual 
members,  in  such  mode  as  not  in  any  way  to  hinder,  but  in 
every  manner  to  render  as  easy  as  may  be,  the  possession  of 
that  highest  and  unchangeable  good  for  which  all  should  seek.  "'^ 

In  practice,  however,  the  foregoing  propositions  have  full 
application  only  to  the  completely  Catholic  State.  This  means 
a  political  community  that  is  either  exclusively,  or  almost  exclu- 
sively, made  up  of  Catholics.  In  the  opinion  of  Father  Pohle, 
"there  is  good  reason  to  doubt  if  there  still  exists  a  purely 
Catholic  State  in  the  world."  The  propositions  of  Pope  Pius  IX 
condemning  the  toleration  of  non-Catholic  sects  do  not  now,  says 

''Supra,  page   5. 


38  STATE  AND  CHURCH 

Father  Pohle,  "  apply  even  to  Spain  or  the  South  American  repub- 
lics, to  say  nothing  of  countries  possessing  a  greatly  mixed  popu- 
lation." He  lays  down  the  following  general  rule:  "When 
several  religions  have  firmly  established  themselves  and  taken 
root  in  the  same  territory,  nothing  else  remains  for  the  State  than 
either  to  exercise  tolerance  towards  them  all,  or,  as  conditions 
exist  today,  to  make  complete  religious  liberty  for  individuals 
and  religious  bodies  a  principle  of  government."^  Father 
Moulart  makes  substantially  the  same  statement :  "In  a  word,  it 
is  necessary  to  extend  political  toleration  to  dissenting  sects 
which  exist  in  virtue  of  a  fact  historically  accomplished."® 

The  reasons  which  justify  this  complete  religious  liberty  fall 
under  two  heads:  First,  rational  expediency,  inasmuch  as  the 
attempt  to  proscribe  or  hamper  the  peaceful  activities  of  estab- 
lished religious  groups  would  be  productive  of  more  harm  than 
good ;  second,  the  positive  provisions  of  religious  liberty  found 
in  the  constitutions  of  most  modern  States.  To  quote  Father 
Pohle  once  more:  "If  religious  freedom  has  been  accepted  and 
sworn  to  as  a  fundamental  law  in  a  constitution,  the  obligation 
to  show  this  tolerance  is  binding  in  conscience. ' '  The  principle 
of  tolerance,  he  continues,  cannot  be  disregarded  even  by  Catho- 
lic States  "without  violation  of  oaths  and  loyalty,  and  without 
violent  internal  convulsions.  "^^ 

But  constitutions  can  be  changed,  and  non-Catholic  sects  may 
decline  to  such  a  point  that  the  political  proscription  of  them 
may  become  feasible  and  expedient.  What  protection  would 
they  then  have  against  a  Catholic  State?  The  latter  could 
logically  tolerate  only  such  religious  activities  as  were  confined 
to  the  members  of  the  dissenting  group.  It  could  not  permit 
them  to  carry  on  general  propaganda  nor  accord  their  organiza- 
tion certain  privileges  that  had  formerly  been  extended  to  all 
religious  corporations,  for  example,  exemption  from  taxation. 
While  all  this  is  very  true  in  logic  and  in  theory,  the  event  of 
its  practical  realization  in  any  State  or  country  is  so  remote 
in  time  and  in  probability  that  no  practical  man  will  let  it 

'  Catholic  Encyclopedia,  loc.  cit. 
'L'Eglise  et  VEtat,  p.  311  (Paris,  1887). 
"Loc  cit. 


COMMENTS  ON  "CHRISTIAN  CONSTITUTION"     39 

disturb  his  equanimity  or  affect  his  attitude  toward  those  who 
differ  from  him  in  religious  faith.  It  is  true,  indeed,  that  some 
zealots  and  bigots  will  continue  to  attack  the  Church  because 
they  fear  that  some  tive  thousand  years  hence  the  United  States 
may  become  overwhelmingly  Catholic  and  may  then  restrict 
the  freedom  of  non-Catholic  denominations.  Nevertheless,  we 
cannot  yield  up  the  principles  of  eternal  and  unchangeable 
truth  in  order  to  avoid  the  enmity  of  such  unreasonable  persons. 
Moreover,  it  would  be  a  futile  policy ;  for  they  would  not  think 
us  sincere. 

Therefore,  we  shall  continue  to  profess  the  true  principles  of 
the  relations  between  Church  and  State,  confident  that  the  great 
majority  of  our  fellow  citizens  will  be  sufficiently  honorable 
to  respect  our  devotion  to  truth,  and  sufficiently  realistic  to  see 
that  the  danger  of  religious  intolerance  toward  non-Catholics 
in  the  United  States  is  so  improbable  and  so  far  in  the  future 
that  it  should  not  occupy  their  time  or  attention. 

5.     (p.  6)     Comparative  Dignity  op  Church  and  State 

No  one  who  accepts  the  proposition  that  the  Son  of  God 
founded  a  church  to  teach  religion  and  bring  souls  to  Heaven, 
can  logically  reject  the  principle  laid  down  by  Pope  Leo  in 
this  paragraph.  The  spiritual  and  eternal  interests  of  men  are 
surely  more  important  than  their  material  and  temporal  inter- 
ests; therefore,  the  society  which  deals  with  and  promotes  the 
former  is  more  exalted  than  the  society  which  cares  for  the  latter. 
Empathically,  then,  the  Church  is  "not  inferior  to  the  civil 
power." 

For  upwards  of  a  century,  however,  the  theory  has  been 
upheld  by  numerous  writers  on  political  science,  and  put  in 
practice  by  many  civil  governments,  that  the  State,  not  the 
Church,  is  the  supreme  social  organization  in  the  world.  This 
theory  assumes  its  mosl  extreme  and  consistent  forms  in  the 
Hegelian  conception  of  the  omnipotent  State  and  in  the  Austiii- 
ian  theory  of  sovereignty.  According  to  Hegel,  the  State  is  the 
highest  manifestation  and  development  of  the  universal  reason ; 
to  it  all  individuals  and  all  social  institutions  are  subordinate, 


40  STATE  AND  CHURCH 

and  from  it  they  all  derive  their  importance  and  the  justification 
of  their  existence.  Hence  the  State  is  the  highest  institution 
on  earth.  According-  to  the  English  political  theorist,  John 
Austin,  the  sovereignty  of  the  State  is  unlimited.  Every  inde- 
pendent State  is  legally  sovereign  within  its  own  territory,  since 
it  is  not  subject  to  other  States,  nor  subordinate  to  any  part 
of  itself  or  any  society  within  itself.  While  sovereignty  thus 
defined  is  a  purely  legal  concept,  inasmuch  as  it  merely  describes 
the  legal  supremacy  of  each  State  over  its  own  territory  and 
the  mutual  independence  of  all  States,  it  has  been  expanded 
so  as  to  include  moral  implications.  Is  a  sovereign  State  inde- 
pendent, not  merely  of  other  States,  but  of  the  moral  law  and 
the  ordinances  of  religion  ?  May  a  State  reasonably  do  anything 
that  it  has  the  constitutional  authority  to  do,  regardless  of  the 
claims  of  individuals  or  societies?  The  answer  given  to  these 
questions  by  most  political  theorists  and  by  many  political  rulers 
has  been  in  the  affirmative.  It  has  been  in  effect  that  the 
sovereignty  of  the  State  is  not  only  legally  but  morally  unlim- 
ited. The  State  is  supreme  and  may  do  what  it  pleases.  Among 
the  English  speaking  peoples,  as  well  as  in  Germany,  the  theory 
of  State  absolutism  has  made  considerable  progress  both  in 
theory  and  in  practice. 

From  this  point  of  view,  the  Church  appears  as  not  simply 
the  less  important  of  the  two  great  societies,  but  merely  one  of 
several  private  associations  existing  within  and  subordinate  to 
the  State.  On  the  other  hand,  the  State  is  regarded  as  the 
highest  expression  of  social  life,  co-extensive  and  all  but  identical 
with  human  society  itself.  To  it  is  attributed  the  moral  author- 
ity and  supremacy  that  men  once  acknowledged  as  the  pre- 
rogative of  the  Church.  It  usurps  the  place  in  society  formerly 
held  by  the  Church.  It  makes  itself  the  spiritual  and  moral,  as 
well  as  the  temporal  and  civil  head  of  society,  the  final  deter- 
minant of  social  right  and  social  wrong,  social  justice  and 
social  injustice.  This  is  far  more  than  a  reversal  of  the  doctrine 
set  down  by  Pope  Leo.  As  we  shall  see  presently,  the  Catholic 
doctrine  concedes,  nay,  maintains,  that  the  State  is  co-ordinate 
with  the  Church  and  equally  independent  and  supreme  in  its 
own  distinct  sphere.     According  to  the  Catholic  position,  the 


COMMENTS  ON  "CHRISTIAN  CONSTITUTION"     41 

Church  is  superior  to  the  State  only  in  the  dignity  of  its  nature 
and  end,  not  in  those  matters  that  are  the  peculiar  province  of 
the  State.  According  to  the  theory  that  we  are  now  criticising, 
the  State  is  supreme  over  the  Church  in  all  departments  of  life. 
The  Church  has  no  co-ordinate  and  independent  authority,  nor 
any  province  that  is  oxclusively  its  own. 

Happily  there  are  many  indications  of  a  reaction  against  this 
theory  of  State  omnipotence,  tliis  deification  of  the  State.  Says 
Prof.  Harold  J.  Laski :  "The  two  characteristic  notes  of  change 
are  present  in  the  dissatisfaction  with  the  working  of  law,  on  the 
one  hand,  and  the  reassertion  of  natural  rights  upon  the 
other."  ^^  These  are  really  two  aspects  of  the  same  con- 
ception. Catholics  welcome  this  reaction  because  they  have 
always  contended  that  the  State,  as  well  as  the  individual,  is 
governed  and  limited  by  the  natural  law,  that  is,  by  the  moral 
law  which  we  know  by  the  light  of  reason.  They  likewise  insist 
that  the  actions  of  the  State  should  be  conformed  to  the  law 
of  Christian  revelation,  of  which  the  guardian  and  interpreter 
is  the  Catholic  Church.  In  our  opposition  to  the  theory  of 
State  omnipotence,  we  cannot  indeed,  go  as  far  as  Professor 
Laski,  in  his  statement  that,  "sovereignty  means  no  more  than  the 
ability  to  secure  consent;"^'  for  we  recognize  that  the  State  has 
true  moral  authority,  and  that  within  certain  limits,  this  author- 
ity is  rationally  and  morally  independent  of  the  assent  of 
the  citizens.  We  do  not  accept  that  moral  anarchism  which 
would  permit  any  social  group  at  any  time  to  withhold  its 
allegiance  and  fix  the  limits  of  sovereignty.  Our  contention  is 
simply  that  the  sovereignty  and  authority  of  the  State  are  not 
absolute,  but  are  limited  and  defined  by  the  proper  end  of  the 
State  and  its  methods  of  operation,  and  we  insist  that  the  sphere 
of  the  Church  is  not  only  distinct  from  that  of  the  State,  but 
higher  in  dignity  and  in  importance. 

6.     (p.  7)     The  Church  as  Civil  Ruler 

The  supreme  and  independent  authority  in  the  spiritual  realm 
cannot  be  exercised  adequately  unless  it  is  recognized  by  the 

"  Authority  in  the  Modern  State,  p.  118. 

"  StvMes  in  the  Prohlem  of  Sovereignty,  p.  14. 


42  STATE  AND  CHURCH 

rulers  of  States.  Pope  Leo  calls  attention  to  such  recognition 
in  the  official  relations  between  civil  governments  and  the  Church 
for  many  centuries.  Then  he  points  out  that  "it  was  not  with- 
out a  singular  disposition  of  God's  providence,"  that  this  inde- 
pendence and  freedom  of  action  were  for  a  long  time  safe- 
guarded through  the  Church's  possession  and  exercise  of  civil 
sovereignty.  The  reference  is,  of  course,  to  the  Papal  States, 
the  Temporal  Power,  which  the  government  of  Italy  took  by 
force  from  the  Church  in  1870.  Pope  Leo  does  not  say  that  the 
Church  must  have  civil  power  over  the  Papal  States,  or  over 
any  other  territory,  at  all  times  and  in  all  circumstances  as 
"the  surest  safeguard  of  her  independence."  He  is  speaking 
historically.  The  end  that  he  desires  to  see  attained  is  freedom 
for  the  Church  to  exercise  her  spiritual  and  moral  mission. 
Conceivably  that  end  might  be  reached  by  other  means  than 
that  of  temporal  sovereignty.  It  might  be  realized  by  adequate 
international  recognition  and  guarantees. 

7.     (p.  7)     The  Independence  op  the  State 

In  the  clearest  and  briefest  terms,  Pope  Leo  here  asserts  that 
Church  and  State  are  mutually  independent,  and  that  each  is 
supreme  in  its  own  province.  This  is  the  most  authoritative 
and  convincing  answer  to  the  charge  that  the  Catholic  doctrine 
makes  the  State  subject  to  the  Church.  In  the  field  of  temporal 
affairs,  in  all  that  pertains  to  civic  welfare,  the  State  is  supreme, 
and  the  Church  has  neither  the  desire  nor  the  authority  to 
interfere.  It  is  true  that  the  actions  of  the  State,  whether  in 
the  field  of  legislation  or  administration,  have  moral  aspects, 
inasmuch  as  they  are  human  actions;  therefore,  they  are  in 
some  manner  subject  to  the  Church  as  the  interpreter  of  the 
moral  law.  On  this  point  we  must  make  two  important  observa- 
tions. 

First,  the  proportion  of  State  enactments  and  performances 
which  raise  a  distinct  and  important  moral  question  is  exceed- 
ingly small.  The  great  majority  of  the  acts  of  government 
do  not  compel  or  permit  the  citizen  to  ask  himself  whether  he  is 
obliged  in  conscience  to  refuse  his  adherence.     Therefore,  they 


COMMENTS  ON  "CHRISTIAN  CONSTITUTION"     43 

are  none  of  the  Church's  business.  In  the  second  place,  when 
the  Catholic  citizen  is  constrained  to  regard  a  civil  law  or  admin- 
istrative action  as  unjust  or  immoral,  he  acts  upon  the  same 
principle  and  adopts  essentially  the  same  course  of  action  as 
the  conscientious  citizens  who  is  not  a  Catholic.  Even  though 
he  takes  his  moral  guidance  from  the  Church,  his  refusal  of 
civil  obedience  does  not  put  the  Church  in  the  position  of 
interfering  in  the  affairs  of  the  State,  or  of  denying  the  proper 
supremacy  of  the  State.  In  deciding  whether  the  obnoxious  law 
ought  to  be  obeyed,  the  non-Catholic  citizen  may  consult  his 
Bible,  or  his  minister,  or  his  church,  or  merely  his  own  con- 
science. In  a  similar  situation  the  Catholic  citizen  may  consult 
his  priest  or  his  bishop,  or  the  Pope.  In  neither  situation  is 
there  a  denial  of  the  authority  and  supremacy  of  the  State. 

The  case  stands  thus:  While  the  authority  of  the  State  is 
supreme  in  civil  affairs,  it  is  not  in  every  respect  unlimited. 
It  must  be  exercised  in  conformity  with  the  moral  law.  Whether 
a  particular  act  of  the  State  is  contrary  to  the  moral  law,  is  a 
question  which  obviously  must  be  decided  by  some  other  author- 
ity or  tribunal  than  the  State  itself,  since  the  State  has  no  com- 
petence in  the  field  of  morals.  The  solution  will  be  sought  by 
one  man  from  his  conscience  alone,  by  another  from  the  Church. 
In  neither  case  is  it  proper  to  say  that  the  supremacy  of  the 
State  is  denied.^^ 

In  times  past  the  authorities  of  the  Church  occasionally  seemed 
to  exceed  this  function  of  moral  interpretation  of  governmental 
acts.  Apparently  they  sometimes  claimed  direct  and  immediate 
jurisdiction  over  the  State ;  for  example,  when  the  Popes  deposed 
temporal  rulers.     A  brief  review  of  the  theological  opinion  on 

"An  extended  discussion  of  some  important  controversies  in  which  both 
Catholic  and  Protestant  bodies  refused  to  accept  the  unlimited  authority 
of  the  State,  will  be  found  in  Laski's  Studies  in  the  Problem  of  Sover- 
eignty. Professor  Laski  declares  that  the  true  attitude  is  that  which 
"denies  the  validity  of  any  sovereign  power  save  that  of  right,  and  [which] 
urges  that  the  discovery  of  right  is,  on  all  fundamental  questions,  a  search 
upon  which  the  separate  members  of  the  State  must  individually  engage" 
(Authority  in  the  Modern  State,  p.  122).  In  this  search,  however,  the  indi- 
vidual who  is  a  Catholic  has  a  very  great  advantage  over  all  others,  since 
he  can  appeal  to  and  apply  the  very  definite,  systematic,  and  authoritative 
moral  teaching  of  the  Church. 


44  STATE  AND  CHURCH 

this  subject,  a  brief  notice  of  one  famous  historical  instance, 
will  suffice  to  meet  this  particular  issue,  and  will  at  the  same 
time  make  more  clear  the  general  doctrine  concerning  the  limits 
of  the  State's  independence. 

No  formal,  dogmatic  pronouncement  has  ever  been  made  by 
the  Church  regarding  her  precise  authority  in  civil  affairs. 
Theologians  have  discussed  the  question  at  great  length,  but 
their  opinions  have  not  been  unanimous.  Three  theories  have 
found  favor  among  them:  The  Church  has  direct  power  over 
States;  her  power  in  this  field  is  only  indirect;  her  power  is 
merely  directive  and  of  counsel. 

According  to  the  first  theory,  both  spiritual  and  temporal 
power  have  been  committed  by  God  to  the  Church ;  consequently 
civil  rulers  derive  their  authority  from,  are  responsible  to,  and 
may  be  deposed  by  the  Church.  This  opinion  was  never  held 
by  more  than  a  few  writers,  chiefly  Henry  of  Segusia  (13th 
century)  and  Augustus  Triumphus  (14th  century).  The  great 
majority  of  theologians  in  all  ages  have  maintained  that  the 
power  of  the  Church  over  the  State  is  merely  indirect.  That  is 
to  say,  the  Church  has  authority  to  affect  civil  rulers  or  their 
ordinances  only  when  and  insofar  as  these  have  a  distinct  bear- 
ing upon  religion  or  morals.  This  power  is  called  indirect 
because  it  is  not  formally  civil  or  political,  but  only  spiritual 
with  indirect  civil  effects  and  implications.  According  to  this 
theory,  neither  a  Pope  nor  a  General  Council,  nor  any  other 
organ  of  the  Church  has  the  authority  directly  to  depose  a 
civil  ruler. 

When  a  Pope  excommunicated  a  prince  or  king,  the  act  was 
clearly  one  of  spiritual  jurisdiction.  When,  as  sometimes  hap- 
pened, it  was  followed  by  a  Papal  declaration  releasing  the 
subjects  of  the  excommunicated  person  from  their  oaths  of 
allegiance,  the  latter  pronouncement  was  likewise  of  a  spiritual 
nature;  for  it  directly  concerned  the  binding  obligation  of  an 
oath,  which  is  primarily  a  religious  engagement.  The  question 
whether  the  subjects  of  a  Christian  prince  who  had  apostatized 
from  the  true  faith  were  still  obliged  to  give  him  obedience, 
was  obviously  a  question  of  religion  and  morals.  Unless  we 
maintain  that  the  State  is  the  supreme  authority  in  matters 


COMMENTS  ON  "CHRISTIAN  CONSTITUTION"     45 

of  morality  and  religion,  we  cannot  concede  it  the  right  to 
decide  such  a  question.  Therefore,  an  authoritative  decision 
could  come  only  from  the  Church.  The  effect  of  a  decision 
unfavorable  to  the  ruler  was,  indeed,  quite  the  same  as  though 
the  Pope  had  claimed  the  right  to  depose  him  directly.  The  king 
lost  his  kingdom.  Nevertheless  the  course  of  action  followed  by 
the  Pope  was  spiritual  and  moral  throughout.  At  no  point  did 
it  involve  any  claim  of  direct  civil  power. 

With  regard  to  the  deposing  power  in  the  Middle  Ages,  we 
must  remember  that  it  was  in  many  countries  specifically  recog- 
nized and  accepted  by  the  public  law.  To  that  extent  the  Pope 
did,  indeed,  exercise  a  direct  power  over  the  civil  ruler,  but 
it  was  a  power  that  came  from  the  concurrence  of  the  State, 
not  merely  from  his  position  as  head  of  the  Church.  In  all 
cases  where  such  concurrence  was  not  given,  the  deposing  power 
of  the  Pope  was  only  indirect,  in  virtue  of  his  spiritual  and 
moral  jurisdiction. 

Perhaps  the  logic  and  the  precise  nature  of  this  indirect  civil 
authority  of  the  Church  can  be  more  clearly  described  if  we 
abstract  from  the  question  of  excommunication,  oaths  of  alle- 
giance and  every  other  circumstance  that  was  peculiar  to  the 
Middle  Ages.  Let  us  consider  one  or  two  modern  instances. 
Suppose  that  the  people  of  Russia  were  suddenly  converted  to 
the  faith  of  the  Roman  Catholic  Church,  and  that  they  appealed 
to  the  Pope  for  an  authoritative  judgment  as  to  whether  they 
were  obliged  to  support  the  government  of  Lenine  and  Trotzky. 
Obviously  this  is  a  moral,  not  a  legal  question.  A  great  number 
of  the  world's  newspapers,  publicists  and  politicians,  would 
give  a  negative  answer,  and  their  reasons  would  necessarily  be 
stated  in  terms  of  ethics.  Their  moral  standards  would  be  in 
most  cases  provided  by  their  private  judgment,  by  the  dictates, 
let  us  say,  of  their  own  consciences.  We  will  suppose  that  the 
Russians  place  more  confidence  in  the  authoritative  moral  judg- 
ment of  the  Catholic  Church  than  in  that  of  journalists  or 
politicians.  After  due  consideration  of  all  the  facts  (a  process 
frequently  disregarded  by  journalists  and  politicians)  the  Pope 
decides  that  the  people  of  Russia  are  under  no  moral  obligation 
to  continue  their  support  of  the  Communist  regime.     In  con- 


46  STATE  AND  CHURCH 

sequence  of  the  acceptance  of  this  decision  by  the  Russian 
people,  the  government  is  unable  to  continue.  In  effect  the  Pope 
has  deposed  Lenine  and:  Trotzky. 

Many  eontemporary  persons  who  would  loudly  applaud  this 
action  of  the  Pope  because  they  like  the  result  to  which  it 
leads,  are  prone  to  denounce  the  deposing  power  of  the  Popes, 
as  exercised  in  past  ages,  and  to  resent  any  similar  exercise 
of  the  indirect  power  of  the  Church  in  any  other  department 
of  civil  affairs.  Yet  all  such  actions  exemplify  the  same  prin- 
ciple; namely,  that  the  Church,  as  the  guardian  and  authorita- 
tive interpreter  of  the  moral  law,  has  as  much  right  to  pro- 
nounce upon  the  morality  of  political  actions  and  relations 
as  upon  the  morality  of  the  actions  and  relations  of  private 
societies  and  individuals. 

For  those  who  deny  this  indirect  power  of  the  Church  over 
the  State,  this  right  to  affect  political  affairs  having  a  religious 
or  moral  aspect, — the  only  practical  alternative  is  to  accept 
the  theory  that  the  power  of  the  State  is  unlimited  morally 
as  well  as  legally.  This  means  that  whatever  is  done  by  the 
State,  any  State,  even  the  State  of  Lenine  and  Trotzky,  is 
morally  right,  and  all  actions  in  opposition  thereto  are  morally 
wrong.  Nor  is  there  any  escape  from  this  dilemma  by  assuming 
that  the  subjects  or  citizens  of  a  conceivably  immoral  regime 
may  properly  refuse  obedience  under  the  sanction  of  their  own 
consciences.  In  this  case  they  are  setting  their  consciences  above 
the  State.  They  are  giving  allegiance  to  another  authority  in 
preference  to  the  State.  Therefore,  they  are  quite  as  disloyal 
to  the  State  as  are  our  imaginary  Russians  whose  consciences 
bid  them  to  seek  and  accept  the  moral  judgment  of  the  Catholic 
Church.  In  both  eases  the  fundamental  appeal  is  to  the 
consciences  of  the  citizens.  In  both  cases  conscience  denies  that 
the  State  is  morally  omnipotent  and  infallible.  The  difference 
between  the  operations  of  conscience  in  the  two  cases  is  a  differ- 
ence of  method,  not  of  principle. 

Let  us  consider  a  milder  instance  of  the  indirect  power,  one 
that  involves  not  the  rejection  of  a  government,  but  the  refusal 
to  obey  a  particular  law.  For  several  years  a  numerous  and 
well  organized  band  of  bigots  have  been  striving  for  an  amend- 


COMMENTS  ON  "CHRISTIAN  CONSTITUTION"    47 

ment  to  the  Constitution  of  Michigan  which  would  prohibit  the 
operation  of  parochial  schools.  Suppose  this  aim  were  accom- 
plished, and  the  authorities  of  the  Church  formally  declared 
the  amendment  to  be  unjust  and  not  binding  upon  Catholics. 
This  would  be  an  exercise  of  the  indirect  power  of  the  Church 
over  the  State.  The  Church  would  have  interfered  with, 
opposed,  an  ordinance  of  the  State  on  the  ground  that  the 
religious  and  moral  rights  of  Catholic  citizens  were  violated. 
But  the  Lutheran  church  in  Michigan  would  probably  take  the 
same  stand,  and  continue  to  maintain  its  parochial  schools. 
While  the  authorities  of  this  church  would  probably  not  defend 
their  position  by  any  formal  claim  to  indirect  power  over  the 
actions  of  the  State,  their  course  would  have  quite  the  same 
effect  practically.  It  would  imply  the  right  to  determine  when 
a  State  ordinance  is  out  of  harmony  with  the  ordinances  of 
religion  and  morality,  and  the  right  to  refuse  obedience  to 
civil  regulations  which  were  found  to  be  of  this  character. 

We  recur  to  the  statement  of  the  issue  by  Professor  Laski: 
•'We  deny  the  validity  of  any  sovereign  power  save  that  of 
right."  And  "the  discovery  of  right,"  which  Professor  Laski 
declares  to  be  the  duty  of  the  individual  members  of  the  State, 
is  for  the  Catholic  citizen  achieved  in  the  authoritative  decisions 
of  the  Church.  That  is  the  whole  of  the  situation,  considered 
practically.  If  a  moral  decision  of  the  Church  which  is  adverse 
to  a  government  or  a  law,  is  accepted  by  a  sufficiently  large 
section  of  the  citizens,  the  State  will  find  itself  in  difficulty. 
But  the  same  thing  will  happen  if  a  sufficient  number  of  citizens 
are  moved  by  their  individual  consciences  to  repudiate  the 
actions  or  laws  of  the  government.  In  both  cases  the  independ- 
ence of  the  State  is  not  questioned  within  its  legitimate  field; 
it  is  denied  only  when  the  State  transgresses  the  moral  law. 

In  the  light  of  the  foregoing  discussion,  the  pretended  menace 
to  civil  authority  from  the  allegiance  of  Catholic  citizens  to  the 
Church  vanishes  into  thin  air.  The  Church  has  no  authority, 
direct,  indirect,  or  of  any  other  sort  or  description,  over  the 
acts  of  the  State,  so  long  as  these  are  not  in  conflict  with 
religion  or  morality.  If  any  Church  official,  priest,  bishop  or 
Pope,  were  to  command  Catholics  to  vote  a  certain  way  on  free 


48  STATE  AND  CHURCH 

trade,  or  an  income  tax,  or  a  bonus  for  ex-soldiers,  or  any  other 
political  issue  that  involves  no  clear  moral  or  religious  question, 
the  injunction  would  properly  be  disregarded  by  substantially 
all  to  whom  it  was  addressed.  Even  in  regard  to  political 
matters  that  have  a  distinct  moral  aspect,  the  authorities  of  the 
Church  never  issue  instructions,  or  even  advice,  unless  the  ques- 
tion is  one  of  very  grave  importance  and  its  moral  or  religious 
implications  are  evident  to  all.  Those  who  profess  to  believe 
that  any  modern  State  is  threatened  by  the  claim  of  the  Church 
to  pronounce  judgment  on  the  moral  phases  of  civil  affairs,  are 
ignorant  alike  of  the  principle  and  the  manner  in  which  it  is 
customarily  applied. 

The  third  theory  of  the  theologians  concerning  the  power  of 
the  Church  over  the  State,  describes  that  power  as  "directing  or 
guiding."  Inasmuch  as  it  does  not  differ  greatly  from  the 
theory  of  indirect  power,  and  inasmuch  as  it  was  never  held  by 
any  considerable  number  of  writers  (Gosselin  and  Fenelon  are 
the  principal  names)  it  need  not  be  further  examined.  The 
prevailing  Catholic  view  is  now,  as  it  has  been  always,  that  which 
is  known  as  the  theory  of  indirect  power. 

Against  this  statement  the  objection  may  be  made  that  the 
Bull,  "Unam  Sanctam,"  of  Pope  Boniface  VIII  formally  de- 
fined the  power  of  the  Church  over  the  State  to  be  direct.  This 
is  the  famous  doctrine  of  the  "two  swords,"  the  one  spiritual 
and  the  other  temporal,  both  "in  the  power  of  the  Church." 
For  our  present  purpose  the  following  will  be  a  sufficient  reply 
to  this  objection.  In  the  first  place,  even  if  Boniface  had 
intended  to  assert  that  the  Church  has  direct  power  over  the 
State,  this  declaration  would  not  be  defined  dogma,  since  the 
only  dogmatic  definition  in  the  Bull  is  the  statement,  "that  all 
must  give  due  religious  obedience  to  the  Pope. "  ^*  In  the  second 
place,  all  Catholic  authorities  from  Pope  Clement  V  (the  second 
successor  of  Boniface)  to  the  present,  have  interpreted  the  Bull 
as  claiming  only  indirect  power  in  civil  matters.^^ 

Our  discussion  of  the  authority  of  the  Church  over  the  State 

"  Hergenroether,  Catholic  Church  and  Christian  State,  vol.  I,  p.  31. 
"Cf.  Cardinal  Manning,  The  Vatican  Decrees  and  their  Bearing  on  Civil 
Allegiance,  pp.  57-71. 


COMMENTS  ON  "CHRISTIAN  CONSTITUTION"     49 

in  matters  having  a  moral  or  spiritual  aspect,  may  be  fittingly 
concluded  by  a  quotation  from  Cardinal  Hergenroether :  "The 
indirect  power  of  the  Church  in  matters  temporal  in  general, 
and  in  relation  to  the  dethroning  of  princes  in  particular,  is 
not  a  temporal  but  a  spiritual  power.  It  is  exerted  in  matters 
temporal  only  in  so  far  as  they  intrench  upon  religion,  and  in 
this  way  cease  to  be  purely  temporal."  ^^ 

8.     (p.   8)     The  Question  op  Joint  Jurisdiction 

After  declaring  that  each  of  the  two  great  societies  is 
supreme  in  its  own  sphere,  Pope  Leo  points  out  that  there  is 
a  common  province  or  borderland  over  which  both  have  jurisdic- 
tion. "One  and  the  same  subject,  related  differently,  .  .  .  might 
belong  to  the  jurisdiction  and  determination  of  both."  Hence 
arises  the  problem  of  marking  the  limits  of  the  two  jurisdictions, 
of  determining  which  parts,  or  aspects,  or  relations  of  a  common 
field  or  subject  belong  to  the  Church,  and  which  to  the  State. 
The  principle  of  distinction  is  precisely  the  same  as  that  which 
separates  the  provinces  themselves.  That  principle  is  to  be 
found  in  the  respective  natures  and  ends  of  the  two  societies. 
Jurisdiction  and  function  are  determined  by  nature  and  ends. 
Spiritual  and  moral  matters  constitute  the  province  of  the 
Church;  civil  and  temporal  matters  that  of  the  State.  The 
latter  has  no  authority  over  the  administration  of  the  sacraments ; 
the  former  has  nothing  to  do  with  the  maintenance  of  the 
police  force.  In  those  borderland  subjects  which  fall  under  the 
jurisdiction  of  both  societies  the  distinguishing  principle  is  the 
same.  Those  phases  of  a  common  subject  which  have  a  moral 
or  religious  character  belong  to  the  Church;  those  which  are 
in  their  nature  and  objects  temporal  are  under  the  authority  of 
the  State.  Thus,  education  is  a  concern  of  the  State  in  its 
civil  and  social  aspects,  and  of  the  Church  in  its  religious  and 
moral  aspects. 

While  this  principle  is  sufficiently  clear  in  its  conception,  in 
the  abstract,  it  is  not  always  easily  applied  in  practice.     Hence 

"  Op.  cit.,  vol.  II,  p.  209.  Cf  the  Avhole  discussion  of  the  question  by 
Cardinal  Hergenroether. 


50  STATE  AND  CHURCH 

we  find  frequent  disagreements  between  Church  and  State  con- 
cerning this  borderland.  Indeed,  some  States  have  gone  so  far 
as  to  claim  the  whole  territory  for  their  exclusive  jurisdiction, 
and  to  deny  that  any  of  these  "  mixed  "  or  common  matters 
belong  to  the  Church  in  any  degree  or  under  any  aspect.  For 
example,  more  than  one  State  has  instituted  a  monopoly  of  edu- 
cation, and  has  taught  its  own  doctrines  of  religion  and  morality. 

The  principal  matters  that  provoke  controversy  concerning 
the  mutual  limits  of  jurisdiction  of  the  two  societies,  are  mar- 
riage and  education.  According  to  Catholic  doctrine,  marriage 
is  not  merely  a  civil  contract ;  it  is  also  a  sacrament.  Since 
its  sacramental  character,  being  a  spiritual  entity,  is  higher  than 
its  civil  character,  the  matrimonial  contract  must  be  conceived 
and  regulated  in  harmony  with  its  spiritual  nature  and  pur- 
poses. The  Church  cannot  sanction  or  recognize  a  marriage 
which  is  contrary  to  either  the  revealed  or  the  natural  law. 
Therefore,  she  lays  down  conditions  for  the  validity  of  the 
matrimonial  contract,  conditions  which  are  necessary  to  safe- 
guard its  spiritual  and  sacramental  character.  A  disagreement 
with  the  State  arises  whenever  the  latter  independently  attempts 
to  regulate  the  validity  of  the  contract. 

According  to  the  Catholic  position,  the  State  has  no  right  to 
make  laws  affecting  the  validity  of  the  marriages  of  baptized 
persons.  The  Church  does  not  deny  that  the  State  has  a  civil 
and  social  interest  in  the  marriage  contract,  but  she  maintains 
that  her  own  standards  of  validity,  her  own  regulations  on  this 
subject,  being  in  accord  with  the  moral  laws  of  both  nature  and 
revelation,  are  wisely  calculated  to  safeguard  the  civil  and  social 
as  well  as  the  spiritual  welfare  of  the  contracting  parties  and  of 
mankind  as  a  whole.  She  does  not  admit  that  human  welfare,  or 
soeial  welfare,  is  promoted  by  State  recognition  of  any  marriage 
that  she  pronounces  invalid,  nor  by  State  prohibition  of  any  mar- 
riage that  she  declares  to  be  valid.  She  recognizes,  indeed,  that 
the  State  may  properly  impose  certain  regulations  which  do  not 
affect  validity,  but  which  are  necessary  for  the  common  good, 
and  therefore  morally  binding  upon  the  persons  concerned. 
Such  are  the  requirements  of  residence,  an  official  license  to 
marry,  the  registration  of  the  marriage  by  the  officiating  clergy- 


COMMENTS  ON  "CHRISTIAN  CONSTITUTION"     51 

man,  and  many  others.  But  the  Church  maintains  that  none 
of  these  conditions  is  of  sufficient  importance  to  justify  the  State 
in  declaring  invalid  a  marriage  in  which  they  have  been 
disregarded. 

In  Catholic  countries  maintaining  a  union  between  Church 
and  State,  the  problem  of  the  two  jurisdictions  in  the  matter  of 
marriage  has  generally  been  adjusted  in  accordance  with  the 
foregoing  statements.  In  non-Catholic  and  secular  States,  there 
has  always  been  more  or  less  disagreement,  because  the  civil 
authority  has  insisted  upon  setting  up  its  own  standards  for  the 
validity  of  the  matrimonial  contract.  The  principal  difference 
has  been  eoncerning  divorce  and  civil  marriage.  In  this  situ- 
ation the  Church  endeavors  to  minimize  the  friction.  For 
example,  while  she  does  not  regard  as  invalid  some  marriages 
which  the  civil  power  proclaims  to  be  such,  as  those  between 
blacks  and  whites  in  some  of  our  Southern  States,  she  uses  all 
reasonable  means  to  make  her  practice  conform  to  the  law. 

Conflict  between  the  two  societies  in  the  field  of  education 
should  be  easily  preventable  in  Catholic  countries.  Inasmuch 
as  the  pupils  are  all  Catholics,  it  is  feasible  to  include  formal 
religious  and  moral  instruction  in  the  curriculum  of  the  State 
schools,  and  to  give  them  the  proper  religious  atmosphere.  And 
this  is  the  obvious  duty  of  a  Catholic  State.  It  is  possible  and 
frequently  desirable  for  a  non-Catholic  or  a  secular  State  to 
grant  pecuniary  aid  to  denominational  schools,  according  to  the 
amount  and  quality  of  general  instruction  imparted  in  them. 
This  system  obtains  in  England,  in  some  of  the  provinces  of 
Canada,  and  in  some  other  countries.  It  is  obviously  impracti- 
cable for  the  State  to  provide  religious  training  for  the  children 
of  various  denominations  that  attend  the  public  schools ;  but  the 
Church  has  a  right  to  expect  that  the  teachers  will  not  directly 
or  indirectly  propagate  doctrines  that  are  contrary  to  the 
Catholic  religion  or  to  sound  morality.  Finally,  neither  the 
Catholic  nor  the  non-Catholic  State  has  a  right  to  maintain  a 
monopoly  of  education. 

In  the  light  of  the  foregoing  discussion,  it  is  evident  that  an 
amicable  adjustment  of  the  relations  of  Church  and  State  in 
matters  of  common  jurisdiction,  ought  to  be  comparatively  easy 


52  STATE  AND  CHURCH 

in  Catholic  States.  On  Catholic  principles  the  limitations  of 
the  two  jurisdictions  can  be  ascertained  with  the  exercise  of  a 
reasonable  amount  of  effort  and  g-ood  will.  Even  in  non- 
Catholic  and  secular  States,  it  is  possible  to  arrive  at  an  ad- 
justment which,  though  not  in  full  accord  with  Catholic  claims, 
will  forestall  misunderstanding  and  actual  friction.  All  that 
is  necessary  for  this  purpose  is  that  the  civil  authorities  should 
seek  merely  to  promote  the  public  welfare,  and  not  to  make 
difficulties  for  the  Church. 


9.     (p.  9)     Concordats 

As  a  matter  of  historical  fact,  however,  disagreements  have 
arisen  between  the  Church  and  even  Catholic  States  concerning 
the  mutual  limits  of  their  respective  jurisdictions.  In  such 
cases,  says  Pope  Leo,  "rulers  of  the  State  and  the  Roman 
Pontiff  come  to  an  understanding  touching  some  special  matter." 
In  other  words,  the  two  powers  draw  up  and  give  their  solemn 
assent  to  a  sort  of  treaty  or  compact.  To  such  an  instrument 
has  been  given  the  name  of  concordat.  Its  general  purpose  is 
"to  terminate,  or  avert,  dissension  between  the  Church  and  the 
civil  powers."  The  great  majority  of  concordats  have  been 
made  to  put  an  end  to  disagreements  already  begun,  and  have 
included  some  concessions  by  the  Pope.  Hence  the  statement  of 
Pop©  Leo :  "At  such  times  the  Church  gives  signal  proof  of  her 
motherly  love  by  showing  the  greatest  possible  kindness  and 
indulgence."  More  than  fifty  concordats  have  been  established 
since  the  year  1107,  the  majority  of  them  in  the  nineteenth 
eentury.^''^ 

10.     (p.  14)     Rights  of  the  Church  Denied  by  Many  States 

In  this  paragraph  Pope  Leo  summarizes  the  principal  ways  in 
which  the  secular  theory  of  the  State  leads  to  the  violation  of 
the  rights  of  the  Church.  Under  the  pretense  of  separating 
Church  and  State,  governments  have  usurped  control  of  mar- 
riage, confiscated  Church  property,  disregarded  those  rights  over 

"  Ch.  Catholic  Encyclopedia :    Art.,  ' '  Concordats. ' ' 


COMMENTS  ON  "CHRISTIAN  CONSTITUTION"    53 

education  which  are  inherent  in  both  the  family  and  the  Church, 
made  their  own  determinations  of  the  respective  spheres  of  the 
two  societies  without  consulting  the  Church,  and  in  general 
treated  the  latter  as  merely  one  among  several  private  societies, 
all  of  which  are  regarded  as  completely  subordinate  to  the 
State.  Our  non-Catholic  fellow  citizens  who  are  unable  to 
understand  why  churchmen  denounce  the  doctrine  of  separa- 
tion of  Church  and  State,  would  see  the  matter  in  a  clearer  light 
if  they  reflected  that  these  denunciations  are  uttered  against  a 
conception  and  a  form  of  separation  which  is  entirely  different 
from  that  which  obtains  in  the  United  States. 

11.     (p.  15)     The  Sovereignty  of  the  People 

Only  the  unthinking  and  the  malicious  will  see  in  this  para- 
graph a  condemnation  of  democracy,  or  of  the  doctrine  of  "the 
consent  of  the  governed."  For  the  Pope  specifically  states 
that  the  theory  which  he  denounces  attributes  political  sover- 
eignty to  the  people,  "without  any  reference  to  God."  As 
he  had  already  pointed  out  in  this  encyclical,  all  authority,  all 
sovereignty,  all  right  to  rule,  whether  in  Church  or  State,  comes 
ultimately  from  God.  Therefore,  even  in  democratic  States, 
the  people  are  merely  the  depositories,  not  the  original  source 
of  political  authority.^^ 

Evidently  a  political  community  is  bound  to  exercise  its 
power  in  conformity  with  the  reason  and  will  of  God.  The 
people  have  not  the  moral  right  to  do  what  they  please  with  their 
governing  authority.  They  have  only  the  right  to  do  that 
which  is  morally  lawful.  This  is  determined  by  the  end  of  the 
State,  which  is  the  protection  and  furtherance  of  the  common 
welfare.  Now  the  common  welfare  is  not  promoted  by  a  political 
theory  or  a  political  constitution  which  teaches,  "that  seditions 
may  rightfully  be  fostered."  A  government  which  attempted  to 
function  on  the  basis  of  this  doctrine  would  be  a  constant  menace 
to  social  well-being. 

Pope  Leo  condemns  the  theory,   "that   princes  are  nothing 

"  A  full  discussion  of  the  sense  in  which  the  people  are  sovereign  will  be 
found  in  chapter  IV. 


54  STATE  AND  CHURCH 

more  than  delegates  chosen  to  carry  out  the  will  of  the  people." 
This  is  obvious  common  sense.  In  a  political  constitution  which 
includes  hereditary  kings  or  prince.s,  it  is  specified  and  under- 
stood that  the  tenure  and  powers  of  these  functionaries  is  not  im- 
mediately and  constantly  dependent  upon  the  approval  of  their 
subjects.  Princes  are,  indeed,  morally  bound  to  exercise  their 
authority  in  such  a  way  as  to  promote  the  common  good,  but  this 
object  is  not  always  quite  the  same  as  the  aim  of  the  popular  will. 
"When  their  rule  has  degenerated  into  tyranny,  subversive  of  the 
social  good,  they  may  (as  will  be  explained  later  in  this  volume) 
be  deposed  by  the  people ;  but  this  is  an  extreme  situation.  To 
accept  this  principle  is  very  different  from  admitting  that 
princes  are  at  every  moment  subject  to  the  will  and  disposition 
of  the  people. 

Even  republics  do  not  admit  that  public  officials  must  always 
carry  out  the  wishes  of  the  people,  or  that  their  administra- 
tion may  at  any  time  be  terminated  by  the  people.  Elected 
officials  are,  indeed,  frequently  expected,  and  properly  so,  to 
carry  out  a  few  large  and  important  policies  to  which  they 
have  committed  themselves  during  the  election  campaign;  but 
there  is  always  an  immense  number  and  variety  of  matters  upon 
which  the  people  have  made  no  pronouncement,  and  concern- 
ing which  officials  may  properly  exercise  their  own  best  judg- 
ment. When  officials,  as  sometimes  happens,  violate  their 
explicit  pledges  to  their  constituents,  they  are  still  entitled  to 
hold  office  to  the  end  of  the  term  for  which  they  have  been 
elected.  There  iq,  indeed,  an  exception  to  this  rule  in  States 
which  have  adopted  the  political  device  known  as  the  recall. 
Even  in  this  situation  the  matter  must  be  conducted  according 
to  certain  forms  prescribed  by  law.  A  special  election  must  be 
held  at  which  the  voters  decide  whether  the  offending  official 
will  be  permitted  to  serve  out  the  term  for  which  he  was 
originally  chosen.  This  procedure  and  the  theory  underlying 
it,  are  quite  different  from  the  method  and  theory  which  are 
condemned  by  Pope  Leo.  The  former  are  in  accord  with  reason 
and  good  order ;  the  latter  are  the  expression  of  popular  whim. 
The  former  safeguard  the  common  welfare;  the  latter  place  it 
in  constant  jeopardy. 


COMMENTS  ON  "CHRISTIAN  CONSTITUTION"     55 

12.     (p.  16)     Freedom  op  Speech  and  Writing 

In  this  paragraph  Pope  Leo  explicitly  rejects  the  doctrine  of 
unlimited  freedom  of  expression.  The  logic  of  his  argument  is 
unassailable.  Speech  and  writing  are  not  ends  in  themselves. 
They  are  onlj^  means  to  human  welfare.  The  chief  constituents 
of  welfare  are  virtue  and  truth;  the  chief  obstacles,  vice  and 
error.  Any  action  or  institution  which  exposes  men  to  the 
latter  is  contrary  to  human  welfare,  to  social  welfare,  and,  so 
far  as  possible,  should  be  prohibited  by  the  State.  As  a  matter 
of  fact,  this  principle  is  to  some  extent  recognized  in  the  laws 
of  every  enlightened  people.  False  statements  injurious  to  the 
neighbor,  teaching  the  young  immoral  practices,  publishing  and 
distributing  indecent  literature, — are  scarcely  anywhere  recog- 
nized as  legitimate  liberties.  No  peculiar  sacredness  inheres  in 
the  vocal  organs  or  in  the  faculties  which  produce  the  written 
or  printed  page.  There  is  no  more  reason  for  permitting  a  man 
to  say  or  write  what  he  pleases  than  for  permitting  him  to  exer- 
cise any  other  set  of  muscles  according  to  his  unregulated 
pleasure  and  regardless  of  social  welfare. 

All  this  is  too  evident  to  need  formal  statement.  Why,  then, 
are  men, — in  modern  times  probably  the  great  majorit}^  of  men 
— so  thoroughly  devoted  to  the  policy  of  freedom  of  expression  1 
There  are  four  main  reasons  or  arguments.  The  first  is  that  such 
freedom  is  among  the  individual's  natural  rights.  In  reply  let 
it  suffice  to  point  out  that  all  natural  rights  are  only  means  to 
some  rational  end,  such  as  life,  liberty,  and  the  development  of 
human  faculties.  Now  freedom  of  expression  carried  so  far 
as  to  include  the  utterance  of  doctrines  w^hich  are  false  and 
injurious  to  human  welfare  is  not  a  rational  freedom,  since  the 
end  which  it  promotes  is  irrational.  Consequently,  there  exists 
no  such  natural  right,  any  more  than  there  exists  a  natural 
right  of  a  manufacturer  to  adulterate  food.  Of  the  two  forms 
of  adulteration  that  which  injures  mind  and  character  is  fre- 
quently more  deadly  than  that  which  harms  only  the  body. 
Therefore^  the  natural  right  of  freedom  of  expression  extends 
only  to  those  opinions  and  doctrines  which  are  true  and 
righteous. 


56  STATE  AND  CHURCH 

The  second  argument  for  unrestricted  freedom  of  speech  and 
writing  maintains  that  in  certain  departments  of  thought  the 
difficulty  of  distinguishing  between  truth  and  error,  or  between 
a  socially  beneficial  and  a  socially  harmful  doctrine,  is  so  great 
as  to  render  the  attempt  to  repress  wrong  opinions  and  teach- 
ings productive  of  more  harm  than  good.  This  assumption  is 
applied  especially  to  the  fields  of  religion,  politics,  and  industry. 
In  a  preceding  note,  we  have  dealt  with  the  subject  of 
religious  freedom.  Here  we  shall  merely  repeat  that  all  men 
of  good  will  can  find  and  recognize  the  true  religion,  and  that 
when  it  is  recognized  and  adopted  by  the  vast  majority  of  the 
citizens,  the  State  ought  to  protect  them  by  all  legitimate  means 
against  the  advocacy  of  false  religious  notions.  It  is  quite  as 
much  the  duty  of  the  State  to  safeguard  the  spiritual  welfare 
of  its  members  as  their  moral  and  physical  welfare. 

In  politics  and  industry,  however,  the  task  of  separa- 
ing  truth  from  error  is  much  more  difficult.  There  exists  no 
infallible  authority  or  institution  to  perform  this  service.  Con- 
cerning the  great  majority  of  opinions  in  both  politics  and 
industry,  no  prudent  man  will  stake  his  eternal  salvation,  or 
his  reputation,  on  the  proposition  that  his  theories  and  policies 
are  infallibly  right  and  socially  beneficial,  and  that  all  opposing 
doctrines  are  certainly  wrong  and  subversive  of  the  public 
welfare.  Nevertheless,  there  are  certain  fundamental  and 
primary  political  and  economic  principles  which  every  demo- 
cratic government  assumes  to  be,  if  not  certain,  at  least  essential 
to  good  order  and  the  welfare  of  the  people.  Among  these  are 
the  proposition  that  changes  in  the  form  of  government  should 
not  be  effected  by  force,  and  that  industrial  betterment  must  not 
be  pursued  by  means  of  the  destruction  of  property.  Since 
actions  of  this  sort  are  inadmissable,  the  advocacy  of  them  is 
likewise  improper  and  unjustifiable.  Hence  the  laws  of  the 
United  States  provide  for  the  deportation  of  aliens  who  indulge 
in  this  particular  sort  of  freedom  of  expression.  During  the 
great  war,  liberty  of  speech  was  very  eonsiderably  restricted  on 
the  assumption  that  actions  or  omissions  which  tended  to  pre- 
vent successful  prosecution  of  the  war,  could  not  reasonably 
be  advocated  in  speech  or  in  writing.     The  safety  of  the  nation 


COMMENTS  ON  "CHRISTIAN  CONSTITUTION"     57 

was  postulated  as  something  about  which  there  could  be  no 
legitimate  difference  of  opinion,  and  against  which  the  doctrine 
of  free  speech  could  not  properly  be  invoked.  Apart  from 
these  fundamental  assumptions  which  involve  the  security  of 
the  State  and  of  such  important  social  institutions  as  private 
property,  our  laws  permit  complete  freedom  of  expression,  so 
long  as  it  conforms  to  the  elementary  canons  of  public  decency. 

The  third  reason  adduced  for  unlimited  freedom  of  speech 
and  writing  is  in  some  measure  a  corollary  of  the  second.  Since 
truth  cannot  readily  be  distinguished  from  error  beforehand, 
all  opinions  should  be  permitted  to  prove  themselves  by  the 
method  of  competition.  In  this  contest  between  what  is  true 
and  what  is  false,  the  former  will  ultimately  triumph.  The 
insuperable  objection  to  this  method  lies  in  the  word  "ulti- 
mately." The  injury  done  to  the  bodies  and  souls  of  millions 
of  men  through  the  unrestricted  propagation  of  false  opinions 
during  hundreds  of  years,  is  scarcely  offset  by  the  fact  that  in 
the  long,  long  run,  these  doctrines  will  have  become  discredited  in 
the  contest  with  truth.  History  admonishes  us  that  truth  and 
error  can  exist  side  by  side  for  centuries,  the  latter  as  well  as  the 
former  continuously  winning  new  adherents.  When  the  State 
adopts  a  policy  of  permitting  the  advocacy  of  socially  injurious 
error,  it  neglects  its  duty  to  the  numerous  generations  that 
come  and  go  in  the  long  interval  before  error  is  "ultimately" 
vanquished. 

In  the  fourth  place,  unrestrained  freedom  of  expression  is 
defended  on  the  ground  that  it  is  the  smaller  of  two  evils.  To 
expose  the  minds  and  souls  of  men  to  wrong  doctrine  is  deplor- 
able, but  to  provoke  continual  strife  in  the  commonwealth  by 
attempting  to  repress  it,  is  frequently  a  greater  calamity.  This 
is  a  sound  practical  rule.  As  we  have  seen  in  the  discussion  of 
religious  freedom,  the  Church  admits  that  such  a  policy  may  be 
preferable  even  when  error  appears  in  its  worst  form,  namely, 
as  a  denial  of  the  religion  established  by  God.  With  much 
greater  reason  can  the  policy  be  applied  to  political  and  economic 
opinions,  since  the  evil  results  of  false  doctrines  in  these  fields 
are  not  nearly  so  great  as  those  that  ensue  upon  the  propagation 
of  errors  in  religion.     Moreover,  the  public  repression  of  any 


58  STATE  AND  CHURCH 

beyond  the  obviously  harmful  political  and  economic  doctrines 
is  frequently  unjust  and  almost  always  of  doubtful  justice, 
since  it  is  impossible  to  determine  with  certainty  whether  the 
proscribed  views  are  really  erroneous  and  socially  injurious. 
Again,  it  is  extremely  difficult  to  frame  legal  prohibitions  of 
expression  which  cannot  by  administrative  abuse  be  carried 
much  further  than  the  intentions  of  the  lawmakers.  We  had 
innumerable  instances  of  this  abuse  in  the  administration  of  the 
espionage  act  during  the  Great  War,  and  we  have  seen  the  intol- 
erable degree  of  repression  which  would  have  been  possible 
under  some  of  the  restrictive  measures  which  were  nearly 
enacted  by  Congress  in  the  winter  of  1920.  In  view  of  the 
foregoing  and  other  practical  considerations,  it  is  clear  that, 
save  in  the  case  of  a  few  fundamental  principles  which  are 
essential  to  the  existence  of  our  political  and  economic  insti- 
tutions, complete  liberty  of  speech  and  of  writing,  within  the 
limits  of  public  decency,  should  be  permitted  and  protected 
in  the  domains  of  politics  and  economics.  In  this  situation  the 
theory  of  competition  is  correct.  To  permit  truth  and  error 
to  compete  for  supremacy  in  the  market  place  of  discussion,  is 
the  less  of  two  evils. 

The  sum  of  the  matter  is  that  while  many  of  the  current 
arguments  for  unlimited  freedom  of  expression  are  unsound, 
the  practical  policy  that  has  been  adopted  by  most  modern 
States  is  in  the  main  justifiable ;  but  it  is  defensible  only  on 
grounds  of  practical  expediency,  not  on  the  basis  of  natural 
rights  or  any  other  objective  doctrine.^** 

13.     (p.   18)     "Intolerance"  in  the  Syllabus 

The  celebrated  Syllabus  of  79  propositions  condemned  by 
Pius  IX,  has  received  more  adverse  criticism  than  almost  any 
other  document  issued  by  the  Holy  See  in  modern  times.  In 
view  of  the  principles  that  we  have  reviewed  in  the  foregoing 
pages,  however,  the  proscriptions  contained  in  this  document  are 
justifiable   and   reasonable.     The   four   propositions   quoted   on 

"  For  an  authoritative  discussion  of  this  subject  see  the  extracts  from 
Pope  Leo's  encyclical  on  Human  Liberty  in  chapter  XI. 


COMMENTS  ON  "CHRISTIAN  CONSTITUTION"    59 

page  18  are  fair  samples  of  the  proscribed  doctrines.  In  the 
first  of  the  four  we  find  a  denial  of  any  rights  to  the  Church 
except  those  which  the  State  is  willing  to  concede.  The  prin- 
ciple expressed  in  this  proposition  is  fatal  to  the  rights  and 
welfare,  not  only  of  the  Church,  but  of  every  other  organization 
to  which  the  citizens  may  wish  to  belong.  If  the  civil  power 
may  justly  determine  the  rights  and  activities  of  the  Church, 
it  may  with  greater  reason  exercise  the  same  control  over  all 
lesser  societies.  Men  could  not  maintain  a  trade  union,  a 
fraternal  association,  or  a  debating  society  if  the  State  decided 
to  forbid  them.  This  is  tyranny  and  absolutism.  Of  course, 
the  State  has  a  right  to  regulate  and  limit  the  activities  of 
private  societies  to  the  extent  that  is  necessary  for  public  wel- 
fare, but  it  has  no  right  to  restrict  their  freedom  beyond  this 
point,  much  less  to  forbid  their  existence  entirely.  The  right 
to  form  associations  for  common  advantage  is  among  the  rights 
which  men  derive  from  reason  and  nature.  It  is  not  a  right 
which  may  properly  be  denied  or  arbitrarily  restricted  by  the 
State. 

The  right  of  the  Church  to  exist  and  perform  all  her  necessary 
functions  is  not  only  natural,  as  in  the  case  of  private  societies, 
but  supernatural,  inasmuch  as  the  Church  was  directly  estab- 
lished by  Christ.  Non-Catholics  do  not  acknowledge  this  claim, 
but  they  need  not  do  so  in  order  to  concede  the  reasonableness 
of  immunity  from  arbitrary  State  interference.  The  rights  and 
the  freedom  claimed  by  the  Church  in  virtue  of  her  divine 
foundation  and  mission  do  not  injure  any  genuine  public  inter- 
est, nor  limit  any  of  the  legitimate  powers  of  the  State.  The 
best  practical  evidence  of  this  statement  is  provided  by  the 
history  of  the  Church  in  the  United  States  of  America. 

Proposition  XXXIX  is  a  bold  enunciation  of  the  doctrine  of 
State  omnipotence.  It  asserts  in  effect  that  neither  individuals 
nor  associations  have  any  rights  which  the  State  is  bound  to 
respect.  The  civil  government  may  do  what  it  pleases  with  the 
liberty,  the  property  and  the  lives  of  the  citizens.  This 
monstrous  doctrine  was  not  the  least  of  the  forces  which  moved 
the  people  of  the  United  States  to  enter  the  war  against 
Germany.     Prussian  autocracy  was  discerned  to  be  not  merely 


60  STATE  AND  CHURCH 

a  bad  thing  for  the  Germans,  but  a  constant  menace  to  democ- 
racy throughout  the  world. 

The  proposition  which  affirms  that  Church  and  State  should 
be  separated,  was  condemned  because  of  its  universal  terms. 
Pope  Pius  IX  did  not  intend  to  declare  that  separation  is  always 
unadvisable,  for  he  had  more  than  once  expressed  his  satis- 
faction with  the  arrangement  obtaining  in  the  United  States. 
What  he  condemned  wasi  the  doctrine  that  in  no  country,  in 
no  circumstances,  should  Church  and  State  be  united.  The 
untenableness  of  this  doctrine  has  been  sufficiently  shown  in 
preceding  pages. 

In  the  last  of  the  four  propositions  quoted,  it  is  asserted  that 
unlimited  liberty  of  religious  and  other  opinions  does  not  lead 
to  the  corruption  of  morals  or  the  spread  of  religious  indif- 
ference. This  is  a  question  of  fact,  and  experience  as  well  as 
common  sense  assures  us  that  the  license  to  preach  immoral 
doctrines  increases  immorality,  while  indifference  toward  religion 
on  the  part  of  the  State  tends  to  produce  a  similar  attitude 
among  many  of  the  citizens. 

14.     (p.  19)     Public  Protection  for  all  Forms  of 
Religion 

This  sentence  expresses  briefly  the  true  principle  of  religious 
toleration  and  its  sole  justification.  In  a  genuinely  Catholic 
State,  public  authority  should  not  permit  the  introduction  of 
new  forms  of  religion;  but  when  several  denominations  have 
already  been  established,  the  State  may,  and  generally  should, 
permit  them  all  to  exist  and  to  function.  The  reason  is  that 
the  attempt  to  suppress  them  would  on  the  whole  be  injurious 
to  the  commonwealth. 


15.     (p.  23)     Catholic  Participation  in  Political  Affairs 

Pope  Leo  here  states  the  ordinary  Catholic  doctrine  concern- 
ing the  duty  of  the  citizens  to  take  part  in  politics.  Of  course, 
he  has  in  mind  governments  which  exemplify  the  republican 
principle.     The  public  welfare  depends  upon  the  conduct  of 


COMMENTS  ON  ''CHRISTIAN  CONSTITUTION"     61 

government;  the  policies  and  activities  of  government  are 
determined  fundamentally  by  the  citizens;  therefore,  the  latter 
are  morally  bound  to  devote  a  reasonable  amount  of  time  and 
effort  to  the  task  of  providing  and  promoting  good  government. 
For  the  individual  citizen  this  is  not  merely  a  political  right;  it 
is  a  duty  of  legal  justice,  of  that  justice  which  obliges  all  members 
of  the  commonwealth  to  further  the  common  good  within  the 
limits  of  their  powers  and  opportunities.'*^ 

'"  For  a  full  treatment  of  this  subject  see  chapter  XIII. 


3.     THE   MORAL   ORIGIN  OF   CIVIL   AUTHORITY  ^ 
By  Louis  Cardinal  Billot,  S.J. 

The  statement  that  political  authority  is  immediately  from 
the  people,  can  be  understood  in  two  ways:  Either  from  the 
people,  as  it  were,  abdicating  and  transferring  by  a  donation 
or  contract  that  authority  to  those  who  preside  over  the  common- 
wealth ;  or  from  the  people,  creating  organic  law  in  virtue  of 
which  authority  is  embodied  in  such  or  such  a  governmental 
form,  and  given  to  such  or  such  a  possessor.  .  .  .  The  dif- 
ference between  these  two  ways  may  be  illustrated  by  an  example 
taken  from  the  law  of  property.  I  may  receive  dominion  over 
a  thing  from  another  person,  as  the  rightful  possessor  who  now 
makes  mine  that  which  was  his,  as  if  Titius  would  donate  to  me 
his  field ;  or  from  another,  as  from  the  immediate  author  of  a  law 
by  which  dominion  is  acquired,  as  if,  in  virtue  of  prescription 
enacted  by  the  civil  legislator,  I  begin  to  be  the  owner  of  a  piece 
of  land  which  before  did  not  belong  to  me.  That  magistrates 
derive  their  power  proximately  from  the  people,  is  explained 
by  most  of  the  older  scholastics  according  to  the  analogy  of  the 
former  example.  But  we  think  that  we  should  base  the  expla- 
nation rather  on  the  second  example.  However,  these  points 
concern  only  the  deeper  understanding  of  the  doctrine,  and 
maybe  this  is  a  dispute  more  about  words  than  things.  In  any 
ease,  forms  of  government  and  titles  to  exercise  power,  and 
power  itself,  as  existing  in  its  determinate  possessors,  ,-^^e  not 
immediately  from  God,  but  only  through  the  medium  of  human 
consent,  that  is,  the  consent  of  the  community. 

An  objection  to  the  foregoing   statement   has  been  brought 

*  The  paragraphs  of  this  chapter  are  a  free  translation  of  the  greater 
part  of  Propositions  III  and  IV,  aection  1,  question  12,  chapter  3, 
De  Ecclesia  Christi. 

62 


MORAL  ORIGIN  OF  CIVIL  AUTHORITY  63 

forward  from  the  words  of  the  Encyclical  of  Pope  Leo  XIII, 
Diuturnum  Illud:  "It  is  important  to  bear  in  mind  that  those 
who  are  to  preside  over  the  commonwealth  can  in  some  cases 
be  selected  by  the  will  and  judgment  of  the  multitude,  without 
any  opposition  on  the  part  of  Catholic  teaching.  By  this 
selection  indeed  the  sovereign  is  designated,  but  the  rights  of 
sovereignty  are  not  conferred :  authority  is_  not  delegated,  but 
the  person  who  is  to  exercise  it  is  designated."  We  reply  that 
these  words  merely  set  forth  the  pure  and  simple  doctrine  of  faith 
against  the  pernicious  innovation  with  which  very  many  were 
infatuated  in  the  sixteenth  century,  and  which  in  the  eighteenth 
century  led  to  the  monstrous  error  of  the  Social  Contract.  .  .  . 
What  the  Pope  denies  is~tTiat  the  popular  choice  ever  confers 
the  rights  of  sovereignty  in  the  sense  of  those  who  oppose 
Catholic  doctrine;  that  is,  in  the  sense  that  the  right  of 
sovereignty  in  itself  comes  from  the  people,  after  the  manner  of 
an  instrumental  power  which  flows  from  a  supreme  commissioner 
to  one  commissioned.  In  a  word,  the  Pope  denies  what  has 
been  unanimously  denied  at  all  times  by  Catholic  theologians. 
And  the  Pope  agrees  with  the  theologians  likewise  in  his  positive 
affirmations.  Since  authority  in  itself  is  constituted  not  by 
human  but  by  divine  natural  right,  there  is  nothing  left  for 
human  will  or  action  but  the  determination  and  designation  of 
the  ruler.  .  .  .  Through  this  designation  the  people  become 
the  proximate  cause,  not  indeed  of  power  as  such,  but  of  the 
conjunction  of  power  with  such  a  person,  according  to  such  or 
such  a  measure,  and  such  or  such  conditions.  Hence  the  Pope's 
statement  does  not  remove  from  the  community  the  power  that 
is  truly  constitutive  of  government.   .    .    . 

Other  objections  are  made  by  recent  authors  who  hold  that 
the  power  of  sovereigns  is  derived  immediately  from  God.  One 
of  these  maintains  that  society  cannot  confer  authority,  since 
there  is  no  constituted  society  prior  to  the  institution  of  a  govern- 
ment. I  reply:  At  the  moment  before  the  institution  of  a 
government  there  exists  a  society  constituted,,  not  indeed  ulti- 
mately and  in  perfect  actuality,  yet  in  potentiality,  whenever 
there  exists  a  determinate  multitude  of  men  assembled  to  help 
one  another  for  a  political  end.     Nor  are  the  means  wanting 


64  STATE  AND  CHURCH 

to  produce  the  effect.  Unless  we  fancy  that  civil  societies  have 
been  immediately  instituted  by  nature,  we  must  recognize  the 
existence  of  some  constituting  power  in  the  community,  in  the 
first  stage  of  political  society.  Before  the  institution  of  a  gov- 
ernment, therefore,  there  is  already  at  hand  a  social  power,  not 
indeed  for  governing  that  society,  but  for  constituting 
sovereignty  from  which  the  governing  power  is  derived.  .  .  . 
According  to  the  second  objection,  if  political  power  is  from 
God  in  any  way  whatsoever,  it  must  be  from  God  in  some 
determinate  and  concrete  subject  or  possessor.  My  reply  is 
that  political  sovereignty,  in  so  far  as  it  is  from  God,  exists 
immediately  in  a  concrete  subject  or  possessor,  namely,  in  the 
community  itself,  by  which  it  is  afterwards  retained,  or  is 
transferred  to  one  monarch,  or  to  a  select  group.  Moreover,  the 
power  of  jurisdiction  is  not  to  be  likened  entirely  to  physical 
forms  which  do  not  exist  except  in  some  determinate  subject. 
If  this  were  true,  the  Papal  power  would  be  extinct  in  the  inter- 
val between  the  death  of  a  Pope  and  the  election  of  his  succes- 
sor. ...  If  you  ask  where  is  political  power,  as  immediately 
instituted  by  God?  I  reply:  In  the  law  of  nature,  or  in  the 
ordinance  of  the  divine  reason,  which  is  manifested  by  human 
nature  and  written  in  the  human  mind.  But  this  general  ordi- 
nance must  be  determinated  by  men.  Hence  the  actual  holder 
of  political  authority,  holds  it  by  human  law  as  its  proximate 
source ;  but  political  authority  as  such  does  not  come  from  men ; 
they  merely  determine  the  form  in  which  it  will  be  actualized, 
and  the  person  or  persons  by  whom  it  will  be  exercised. 

The  third  objection  is  that  this  doctrine  of  popular  deter- 
mination of  government  and  selection  of  the  ruler,  provides  a 
foundation  for  sedition  and  rebellion  against  the  monarch.  In 
reply,  I  would  point  out  that  there  is  no  doctrine  which  cannot 
be  abused.  Yet  no  doctrine  ought  to  be  condemned  for  that 
reason  alone.  The  view  that  authority  is  conferred  by  God 
immediately  upon  the  ruler  has  likewise  been  abused,  and  it  is 
hard  to  tell  which  abuse  has  been  the  greater  or  the  more 
detestable.  It  is  certain  that  the  regalists  have  been  led  to  con- 
clude that  kings  as  such  may  claim  supreme  indifference  or 
irresponsibility,  whence  they  extended  the  powers  of  civil  society 


MORAL  ORIGIN  OF  CIVIL  AUTHORITY  65 

even  over  religion.  .  .  .  All  that  we  can  do  is  to  abstract  alto- 
gether from  abuses,  and  to  seek  only  what  truly  follows  from 
principles.  There  is  no  foundation  for  rebellion  in  any  doctrine 
which  asserts  the  divine  precept  of  obedience  to  constituted 
authority.  This  precept  is  neither  taken  away  nor  lessened  by 
our  doctrine.  From  the  fact  that  the  ruler  does  not  derive  his 
authority  immediately  from  God,  it  does  not  follow  that  the 
precept  of  obeying  constituted  authority  is  destroyed  or 
weakened. 

Nor  does  it  follow  that  one  government  can  be  deposed  and 
another  instantly  substituted  at  the  whim  of  the  multi- 
tude. ...  A  will  which  does  not  follow  the  order  of  reason 
neither  has  nor  can  have  validity.  However,  let  us  not  conjure 
up  imaginary  suppositions  which  have  no  place  in  our  actual 
world.  Let  us  remember  that  changes  of  government,  whether 
licit  or  illicit,  are  humanly  unavoidable,  and  that  this  instability 
can  never  be  eradicated  by  any  force  or  any  theory.  The 
practical  question  is,  which  of  the  two  doctrines  that  we  are  con- 
sidering is  more  eonducive  to  the  peace  and  prosperity  of  the 
commonwealth?  Is  it  our  doctrine?  or  is  it  forsooth  that  other 
doctrine  which  is  based  on  a  preposterous  conception  of  legiti- 
macy, and  which  would  recognize  in  dynasties  of  kings  a  right 
as  immovable  as  in  the  succession  of  the  Pope  to  the  Apostolic 
See?     Let  us  consider  this  question  at  somewhat  greater  length. 

The  right  of  sovereignty  is  unlike  the  right  of  property,  inas- 
much as  it  is  by  nature  ordained  not  for  the  benefit  of  him  who 
holds  it,  but  for  the  benefit  of  society.  Hence  if  at  any  time  the 
public  good  requires  a  new  form  of  government  and  a  new 
designation  of  rulers,  no  pre-existing  right  of  any  person  or 
any  family  can  validly  prohibit  this  change.  The  right  to 
create  the  new  legitimate  government  inheres  in  the  community 
habitually  or  potentially.  However,  it  ought  not  to  be  used 
rashly  and  whimsically,  but  only  when  its  use  is  demanded  by 
the  common  good  and  social  tranquillity. 

The  question  may  be  asked,  when  is  the  demand  of  soeial 
necessity  evidently  verified?  For  answer  we  do  not  need  to  go 
far  away,  nor  to  take  refuge  in  metaphysics.  The  necessity  of 
constituting  a  new  government  exists  whenever  the  preceding 


66  STATE  AND  CHURCH 

government  has  been  destroyed,  and  there  has  been  introduced 
a  new  government  which  cannot  be  abolished  without  detriment 
to  peace.  In  such  a  situation,  the  new  government  is  legitimate, 
even  though  the  preceding  one  was  destroyed  by  iniquitous 
rebellion,  for  the  only  pertinent  question  concerns  what  is  here 
and  now  required  by  the  supreme  law  of  the  common  good. 
By  this  supreme  criterion  it  is  evident  that  the  community  has 
the  same  right  to  constitute  a  new  sovereignty  as  it  had  at  the 
beginning  of  its  political  existence.  Generally  speaking,  every 
civil  government  is  to  be  held  legitimate  from  the  moment 
when  it  has  been  constituted  and  accepted  and  regularly 
exercised.  .   .   . 

This  conclusion  is  confirmed  by  the  ancient  and  immemorial 
practice  of  the  Church.  She  has  always  recognized  as  legiti- 
mate governments  of  whatsoever  origin,  once  they  had  been 
constituted  and  had  been  confirmed  by  the  consent  of  peo- 
ples. .  .  .  This  perpetual  practice  and  discipline  of  the  Church 
has  been  illustrated  by  a  doctrinal  declaration  of  Pope 
Leo  XIII  in  that  memorable  Encyclical  to  the  French,  Au  Milieu 
des  Sollicitudes: 

However,  here  it  must  be  carefully  observed  that  whatever  be  the 
form  of  civil  power  in  a  nation,  it  cannot  be  considered  so  definitive  as 
to  have  the  right  to  remain  immutable,  even  though  such  were  the  inten- 
tion of  those  who,  in  the  beginning,  determined  it.  .  .  .  Only  the 
Church  of  Jesus  Christ  has  been  able  to  preserve,  and  surely  will  pre- 
serve unto  the  consummation  of  time,  her  form  of  government. 
Founded  by  Him  who  was,  who  is,  and  who  will  be  forever,  she  has 
received  from  Him,  since  her  very  origin,  all  that  she  requires  for  the 
pursuing  of  her  divine  mission  across  the  changeable  ocean  of  human 
affairs.  And,  far  from  wishing  to  transform  her  essential  constitution, 
she  has  not  the  power  even  to  relinquish  the  conditions  of  true  liberty 
and  sovereign  independence  with  which  Providence  has  endowed  her  in 
the  general  interest  of  souls.  .  .  .  But,  in  regard  to  purely  human 
societies,  it  is  an  oft-repeated  historical  fact  that  time,  that  great  trans- 
former of  all  things  here  below,  operates  great  changes  in  their  political 
institutions.  On  some  occasions  it  limits  itself  to  modifying  something 
in  the  form  of  the  established  government ;  or,  again,  it  will  go  so  far  as 
to  substitute  other  forms  for  the  primitive  ones— forms  totally  different, 
even  as  regards  the  mode  of  transmitting  sovereign  power. 

And  how  are  these  political  changes  of  which  we  speak  jiroduced? 
They  sometimes  follow  in  the  wake  of  violent  crises,  too  often  of  a 


MORAL  ORIGIN  OF  CIVIL  AUTHORITY  67 

bloody  character,  in  the  midst  of  which  pre-existing  governments 
totally  disappear;  then  anarchy  holds  sway,  and  soon  public  order  is 
shaken  to  its  very  foundations  and  finally  overthrown.  From  that  time 
onward  a  social  need  obtrudes  itself  upon  the  nation;  it  must  provide 
for  itself  without  delay.  Is  it  not  its  privilege — or,  better  still,  its 
duty— to  defend  itself  against  a  state  of  affairs  troubling  it  so  deeply, 
and  to  re-establish  public  peace  in  the  tranquillity  or  order?  Now,  this 
social  need  justifies  the  creation  and  the  existence  of  new  governments, 
whatever  form  they  take;  since,  in  the  hypothesis  wherein  we  reason, 
these  new  governments  are  a  requisite  to  public  order,  all  public  order 
being  impossible  without  a  government.  Thence  it  follows  that,  in 
similar  junctures,  all  the  novelty  is  limited  to  the  political  form  of  civil 
power,  or  to  its  mode  of  transmission;  it  in  no  wise  affects  the  power 
considered  in  itself.  This  continues  to  be  immutable  and  worthy  of 
respect,  as,  considered  in  its  nature,  it  is  constituted  to  provide  for  the 
common  good,  the  supreme  end  which  gives  human  society  its  origin. 
To  put  it  otherwise,  in  all  hypotheses,  civil  power,  considered  as  such, 
is  from  God,  always  from  God :  "For  there  is  no  power  but  from  God." 
Consequently,  when  new  governments  representing  this  immutable 
power  are  constituted,  their  acceptance  is  not  only  permissible  but  even 
obligatory,  being  imposed  by  the  need  of  the  social  good  which  has  made 
and  which  upholds  them.  This  is  all  the' more  imperative  because  an 
insurrection  stirs  up  hatred  among  citizens,  provokes  civil  war,  and 
may  throw  a  nation  into  chaos  and  anarchy,  and  this  great  duty  of 
respect  and  dependence  will  endure  as  long  as  the  exigencies  of  the 
common  good  shall  demand  it,  since  this  good  is,  after  God,  the  first 
and  last  law  in  society. 


4.     SOVEREIGNTY  AND   CONSENT 

By  Charles  B.  Macksey,  S.J., 

Sometime    Professor    of    Ethics    in    the    Pontifical    Gregorian 
University,  Rome 

"The  old  order  changeth,  yielding  place  to  new."^  In  the 
perennial  struggle  between  freedom  and  force,  between  equal 
law  and  unequal  privilege,  we  have  come  again  to  a  turning 
point  in  history.  Under  the  ancient  practice  'of  slave-hunting 
and  of  slavery  by  conquest,  we  arrived  at  a  condition  of  four 
hundred  thousand  slaves  in  Athens,  the  most  enlightened  city 
in  the  world,  with  not  more  than  twenty-one  thousand  free 
citi^€ns.^ 

/A.ristotle  drew  the  distinction  between  civil  government  and 
despotism.  A  State  or  civil  society  he  declared  to  be  a  com- 
munity of  freemen,  working  together  for  the  common  happiness 
of  life,  under  a  government  which  is  administered  for  the 
benefit  of  all :  Whereas  a  despotism  is  made  up  of  slaves  living 
under  administrative  control,  not  for  their  own  common  wel- 
fare, nor  in  any  sense  for  their  own  benefit  except  by  the 
merest  accident,  but  for  the  profit  of  the  ruler^  In  his  day 
the  great  bulk  of  mankind  had  no  civil  or  political  existence 
whatever,  but  were  in  a  state  of  absolute  slavery,  exploited  for 
the  service  and  gain  of  their  masters.  Christianity,  wherever 
Christianity  prevailed,  eventually  conquered  that,  and  gradually 
removed  the  blot  of  legal  slavery  from  the  face  of  the  civilized 
earth.  This  was  accomplished  by  practical  and  theoretical 
resistance  on  a  principle,  upon  which  in  the  last  analysis  all 

^Tennyson,  Morte  d' Arthur. 

'  Athenagoras,  Book  VI,  quoted  by  Montesquieu,  Spirit  of  Laws,  I,  p.  23. 
•Aristotle,  Politics,  I,  7:111;  7  and  9. 

68 


SOVEREIGNTY  AND  CONSENT  69 

advance  of  democracy  must  be  based,  that  every  man  is  born 
to  the  image  of  his  Maker,  with  essentially  the  same  purpose 
of  existence. 

In  a  later  age  came  the  expansion  of  vast  land-tenure  into 
feudalism,  and  the  western  world  went  through  the  experience 
of  servants  of  the  soil,  who  passed  with  the  land  from  owner 
to  owner,  had  a  title  from  their  labor  to  a  bare  and  siqualid 
livelihood,  and  were  bound  to  serve  their  masters  with  the 
fruit  of  their  labor,  in  time  of  peace ;  with  their  blood  and  life, 
in  time  of  war.  These  men  were  practically  agricultural  slaves, 
and  those  were  the  days  of  serfdom,  when  government  was  by 
force  'of  the  strong  arm.  /The  Catholic  Church  in  the  Middle 
Ages  made  an  end  of  that,  though  a  form  of  it  renewed  itself 
in  Russia  and  lasted  down  to  a  very  modern  datey/ 

A  modified  form  of  agricultural  servitude  hasT)een  kept  up, 
here  and  there,  through  unjust  oppression,  by  great  landholders. 
The  tenant-farmers  or  farm-servants  of  these  landholders  might 
just  as  well  be  serfs,  as  practically  they  cannot  get  away  from 
slavery  to  the  soil,  and  live  a  man's  full  life,  or  any  life,  for 
that  matter.  Meanwhile  came  the  absorption  of  the  benefit  of 
machinery  by  a  limited  number  of  moneyed  men,  the  massing 
of  capital  and  the  development  of  extended  credit,  the  centrali- 
zation of  production,  and  the  exploitation  of  human  labor 
therein;  and/behold,  we  have  arrived  at  the  condition  of  indus- 
trial servitude,  before  the  remnant  of  agricultural  oppression 
has  been  abolished^ 

Against  the  imminence  of  a  servile  State  perpetuating  this 
subjection  the  forces  of  freedom,  both  conservative  and  radical, 
were  slowly  marshaling,  when,  to  the  momentary  relief  of  the 
oppressor,  national  ambitions  and  rivalry,  territorial  and  com- 
mercial greed  broke  through  the  weak  barrier  of  an  artificial 
balance  of  power  and  let  loose  upon  the  world  the  late  war  of 
all  the  nations.  In  the  swiftly  changing  phantasmagoria  of 
national  aims,  motives,  principles,  and  pretences,  that  have 
been  set  floa/ting  before  the  eyes  of  all,  one  outstanding  fact 
has  remained  fixed  on  the  screen.  We  must  never  again  waste 
twenty  million  human  lives  over  the  contentions  for  profit  of  a 
privileged  few. 


70  STATE  AND  CHURCH 

The  solution  of  this  problem  has  awakened  a  renewal  of 
interest  in  constitutional  readjustment  of  States,  whose  frame- 
work has  been  strained  to  the  breaking  point  in  the  phenomenal 
trials  of  this  war.  We  are  again  face  to  face  with  a  discussion 
of  the  essential  constitution  of  civil  society,  and  with  an  examina- 
tion of  the  character  and  place  of  sovereignty.  Indiscreet 
friends*  of  the  oppressed  and  foes  of  unjust  privilege  have  flown 
in  haste  to  Jean  Jacques  Rousseau,  and  invoke  again  the 
Controft  Social  with  its  false  establishment  of  political  society 
by  conventional  compact,  and  its  fantastic  concept  of  sovereignty 
as  an  amalgam  of  all  wills  in  one,  in  such  fashion  that  govern- 
ment is  only  the  organized  doing  of  what  ultimately  we  all  want 
to  do,  whether  right  or  wrong,  good  or  bad.  Meantime  with 
an  undying  memory  of  the  horrors  of  the  French  Revolution, 
conservative  minds  flee  from  the  idea  of  civil  society  owing  its 
civil  existence  to  common  consent :  While  the  friends  of  unjust 
privilege  thrash  about  for  some  weapon  with  which  to  extermi- 
nate the  idea  of  popular  sovereignty,  and  of  governmental 
accountability  on  earth.  Neither  the  lurid  scenes  of  the 
"Terror"  nor  the  discrowning  of  an  ancient  aristocracy  makes 
false  the  doctrines  that  civil  society  emerges  into  juridical 
existence  by  consent  and  that  sovereignty  may  be  found  in  the 
people,  no  more  than  the  fervid  rhetoric  and  the  brilliant  style 
of  Rousseau  made  them  true.  They  must  stand  or  fall  by 
definition  and  proof. 

I. 

Rousseau's  social  contract  gives  judicial  existence  to  the  body 
politic  as  a  distinct  moral  person  by  "the  total  alienation  to 
the  whole  community  of  each  associate  with  all  his  rights."^ 
The  doetrine  of  that  contract  is  primarily  false  because  no 
man  can,  even  juridically,  alienate  himself,  i.  e.,  his  personality, 
nor  all  his  rights.  For  a  man's  person  is  the  subjective  term  of 
imputability.  If  a  man  could  alienate  that,  he  would  no  longer 
be  responsible  for  his  individual  actions,  nor  for  his  individual 

*Belloc,  The  French  Bevolution,  London,  1911. 
'  Eousseau,  Contrat  Social,  I,  6. 


SOVEREIGNTY  AND  CONSENT  71 

part  in  carrying  out  God's  plan  of  creation.  A  man  cannot 
thus  throw  on  civil  society  all  his  personal  responsibility  to 
his  Maker.  No  more  can  a  man  surrender  all  his  rights.  For 
some  of  them  are  an  inalienable  accompaniment  of  natural 
Divinely-imposed  duties  which  the  individual  cannot  fulfil,  if 
he  be  without  the  aforesaid  rights.  A  surrender  of  these  would 
be  of  a  piece  with  a  dishonest  debtor's  transfer  of  all  his  prop- 
erty to  his  wife.  It  is  true  that  Rousseau  further  on  in  his  work 
wishes  to  qualify  that  total  and  absolute  surrender,  so  as  to 
leave  with  the  individual  the  rights  for  which  the  State  has 
no  use ;  ®  but  the  withdrawal  will  not  stand,  for  he  has  already 
gone  the  whole  way^  and  made  the  social  contract  the  founda- 
tion of  all  right  and  duty,  leaving  no  right  or  duty  antecedent 
to  it,  and  thus  cutting  the  ground  from  under  his  own  feet. 
For  with  all  other  prior  duties  of  man  he  eliminates  by  neces- 
sity that  of  keeping  a  contract;  so  that  the  present  one  loses 
all  binding  force. 

Secondly,  the  contract  as  described  by  Rousseau  is  purely 
conventional,^  i.  e.,  arbitrary  and  artificial;  it  is  not  the  resTilt 
of  any  natural  impulse  nor  under  any  precept  of  natural  law; 
its  content  is  not  determined  for  it  by  the  natural  law.  Yet 
civil  society  is  as  natural  as  the  family;  man's  natural  tendencies 
are  equally  strong  towards  it;  it  is  equally  necessary  for  God's 
full  plan;  it  carries  a  like  obligation  upon  mankind  to  establish 
it;  its  essential  elements,  juridical  as  well  as  others,  are  deter- 
mined by  the  nature  of  the  case,  and  hence  are  prescribed  by 
the  natural  law,  so  that,  if  consent  is  to  establish  its  existence, 
it  cannot  be  the  arbitrary  and  artificial  consent  of  a  conventional 
contract.  Why,  the  thing  would  be  revocable  at  will,  and  could 
give  no  stability  at  all  to  our  political  existence:  whereas  obvi- 
ously civil  society,  if  not  as  indissoluble  as  matrimony,  must  at 
least  be  fundamentally  stable. 

Moreover,  if  the  social  bond  were  Rousseau's  contract  only, 
it  could  bind  no  one  not  a  party  to  the  contract,  and  would 

'Ihid.,  11,4. 

'  lUd.,  I,  8. 

• ' '  The  earliest  of  all  societies,  and  the  only  natural  one  is  the 
family,  .  .  .  and  the  family  itself  is  only  kept  together  by  convention. ' ' 
Contrat  Social,  I,  2. 


72  STATE  AND  CHURCH 

have  to  be  renewed  by  each  successive  generation — a  consequence 
which  does  not  escape  Rousseau^  himself.  Yet,  the  essential 
continuity  of  society  would  thus  perish  utterly. 

Furthermore,  the  contract  as  explaining  the  origin  of  sov- 
ereignty destroys  the  very  idea  of  sovereignty  itself.  Rousseau 
states  that  sovereignty  is  an  absolute  power  in  the  body  politic, 
i.  e.,  in  the  moral  person  of  the  State  as  constituted  by  the  civic 
compact,  over  all  its  members,  when  directed  by  the  general 
will;  that  an  act  of  sovereignty  is  an  authentic  act  of  the 
general  will,  an  agreement  of  the  body  with  each  of  its  members, 
in  a  word  a  general  convention.^"  He  had  already  laid  down 
that  there  is  no  lawful  authority  among  men  except  what  is 
based  on  conventions."  Now,  with  this  concept  of  sovereignty 
as  a  blend  of  all  the  wills  of  the  community,  its  binding  force 
or  obligation  would  come  by  way  of  each  individual 's  consent  to 
the  original  compact.  This  compact  virtually  enduring,  every 
man,  by  his  original  consent,  either  antecedently  bound  himself 
by  each  law  of  sovereignty,  or  else  bound  himself,  then,  to 
consent  anew  to  each  law,  in  due  course.  But  the  human  will 
properly  never  binds  itself.  It  may  consent  to  obligation,  as  it 
does  in  making  a  contract;  but  the  obligation  comes  from  the 
will  of  one  higher  up,  from  authority,  from  prior  law.  So 
just  as  the  consent  to  the  original  contract  does  not  itself  prop- 
erly bind,  neither  does  it  found  an  obligation,  except  in  the 
supposition  of  prior  existing  law,  right  and  duty.  Moreover,  if, 
in  order  to  save  obligation,  we  presume  (as  Rousseau  does  not) 
the  existence  of  the  natural  law  and  the  authority  of  God 
binding  us  through  the  natural  law  to  keep  our  just  contracts, 
we  still  (in  Rousseau's  concept)  eliminate  all  idea  of  authority 
{i.  e.,  all  superior  right  to  bind  the  will  even  of  the  reluctant) 
resident  in  civil  society  itself.  This  is  precisely  what  Rousseau 
wishes  to  do ;  but  despite  that,  this  higher  power  has  been  insisted 
upon  in  the  past,  and  is  insisted  upon  in  the  present  by  the 
common  sense  and  practice  of  mankind. 

Nor  is  this  all.     Reason  shows  us  the  truth  of  the  lesson  of 

•  Ibid.,  I,  4. 
"  Ibid.,  II,  4. 
"/bid.,  I,  4. 


SOVEREIGNTY  AND  CONSENT  73 

St.  Paul  that  "there  is  no  power  but  from  God."^^  Power 
over  the  free  will  of  man  is  nug'atory  without  obligation,  and 
ultimately  only  the  Maker  of  man,  who  gave  him  his  freedom, 
ean,  of  original  right,  limit  its  exercise.  In  point  of  fact  He 
miist  limit  the  exercise  of  human  freedom  according  to  the 
exigencies  of  purpose  for  which  man  was  made.  All  obligation 
is  ultimately  from  God;  all  right  to  impose  obligation  {i.  e., 
all  power)  is  consequently  from  Him.  No  man  can  sanely  deny 
the  Creator  absolute  right  of  both  property  and  jurisdiction 
over  His  creature.  None  other  can  rule  that  creature  except 
with  power  derived  from  on  high.  Of  course  Rousseau  might 
have  said  that  the  power  which  men  have  over  their  own  wills 
comes  from  God,  and  that  when  these  wills  are  merged,  the 
merger  is  still  from  God.  As  a  matter  of  fact  he  did  not  say  it. 
Though  doubtless  he  conceded  man  to  be  God's  creature,  he  had 
no  concept  of  God  conceding,  by  law,  to  man  his  rights  over 
his  own  will.  However,  even  that  modification  in  his  concept 
would  not  save  the  entirety  of  philosophic  truth  in  the  question : 
for  civil  authority  is  something  more  than  a  complex  of  individ- 
ual rights  over  individual  wills,  and,  as  we  shall  see  later, 
must  come  from  God  to  civil  society  immediately.^^ 

For  the  moment  we  must  call  attention  to  the  fact  that  this 
combination  of  citizens'  wills  would  have  no  powder  of  life  and 
death  in  the  community,  for  no  one  puts  into  the  merger  what 
he  has  not  got,  the  right  namely  of  direct  disposal  of  his 
own  life,  much  less  of  that  of  his  fellow.  Rousseau  real- 
izes this  difficulty  and  labors  in  vain  both  to  make  a  man's 
prior  consent  to  his  own  possible  execution  the  only  indirect 
disposal  of  his  own  life,  and  to  turn  a  criminal  into  an  enemy 
at  war,  in  the  hope  of  finding  a  right  to  kill  him  as  an  unjust 
aggressor  inevitably  to  be  killed  to  save  one's  own  life  as  well 
as  the  lives  of  our  fellow-citizens."  Rousseau  proves  quite 
well  that  civil  society  should  have  the  right  of  life  and  death; 
but  he  does  not  prove  what  he  should  prove  and  what  he  set 

"  Romans,  xiii,  11. 

"  Infra,  pp.  23  sqq. 

"  Bousseau,  Contrat  Social,  II,  5. 


74  STATE  AND  CHURCH 

out  to  prove,  viz:     That  individuals  had  that  right  and  trans- 
ferred it  to  the  community. 

The  same  difficulty  arises  with  regard  to  all  punishment  for 
crime,  as  distinguished  from  reparation  for  damage.  No  indi- 
vidual can  prove  his  right  to  punish  his  neighbor;  and  though 
Locke,  to  save  the  situation,  insisted  that  in  the  s'tate  of  man 
prior  to  civil  society  the  right  of  necessary  punishment  was  in 
every  man's  hands,  he  never  proved  the  assertion.^'  It  is  a 
right  of  God,  which  we  cannot  claim  to  share  without  showing 
clear  iand  evident  title,  and  there  is  none  forthcoming  to  the 
individual,  though  there  is  for  the  State.  To  be  accuser,  witness, 
judge,  and  executioner,  all  in  one,  against  one's  fellow-citizen 
is  more  than  we  can  expect  the  wisdom  and  justice  of  God  to 
have  conceded  to  every  poor,  selfish,  passionate  man,  even  before 
civil  society  arose.  Now  if  the  individual  never  had  the  right, 
no  number  of  them  can  confer  it  upon  the  State. 

Finally,  distinguishing  between  sovereignty,  which  is  power, 
and  administration,  which  is  but  the  execution  of  sovereignty's 
laws,  Rousseau's  sovereignty  of  permanently  amalgamated  wills 
leaves  no  civil  power  possible  except  in  the  moral  person  of  the 
community.  That  reduces  all  just  forms  of  government  to  one, 
that  of  absolute  democracy;  makes  the  authority  of  all  officers 
of  the  State  merely  illusory,  reducing  them  to  mere  agents  of 
the  popular  will  with  no  power  to  bind  or  to  loose  in  any  act 
whatever.  Now  though  an  absolute  form  of  democracy  is  one 
of  the  just  forms  of  government,  and  in  a  small  community  may 
be  prudent  and  practical,  the  rejection  of  all  serious  entrusting 
of  authority  to  any  one  distinct  from  the  moral  person  of  the 
whole  community  is  an  exaggeration,  which  would  make  political 
philosophy  ridiculous,  as  it  would  make  political  government 
on  any  extended  scale  merely  nugatory.  Even  the  .subjection  of 
princes  and  officers  of  State  to  the  arbitrary  recall  of  their 
commission  and  power,  while  more  than  the  safety  of  the  people 
from  oppression  requires,  at  the  same  time  nullifies  the  possibil- 
ity of  stably  preserving  peace  and  promoting  prosperity,  the 
very  purpose  for  which  God  ordains  and  man  institutes  civil 
society. 

"Tozer,  Eousseau's  Social  Contract,  In  trod,,  p.  20. 


SOVEREIGNTY  AND  CONSENT  75 

Summarily  our  indictment  comes  to  this,  that  the  social  con- 
tract of  Rousseau  as  a  juridical  foundation  of  civil  society  is  a 
juridical  contradiction  in  terms,  and  that  his  concept  of  sover- 
eignty contradicts  common  sense  and  common  need,  perverts 
political  philosophy,  ignores  the  supreme  rights  of  God,  while 
aiming  to  safeguard  the  rights  of  man,  and  makes  insecure  in 
civil  society  the  very  justice,  peace,  and  prosperity,  which 
Rousseau  was  on  fire  to  restore. 

II. 

Rousseau  has  been  truly  said  to  have  been  the  first  to  popular- 
ize with  the  masses  the  emancipating  theory  of  civil  society 
by  consent,  and  of  sovereignty  ultimately  in  the  people,  which  in 
substance  and  more  consistent  coherence  had  long  been  a  pos- 
session of  the  schools  of  political  philosophy.^®  Janet  did  not 
hesitate  to  write  that  **It  would  not  be  altogether  inexact  to 
say  that  in  the  Middle  Ages  it  was  in  the  cloisters  that  the 
doctrine  of  the  sovereignty  of  the  people  was  born."^^  The 
two  ideas,  however,  that  of  the  Schoolmen  in  the  monastic  schools 
and  that  of  Rousseau  in  the  Paris  forum  have  essential  diverg- 
ences, such  in  fact  that  though  Rousseau  might  have  brought 
himself  to  accept  the  Scholastic  idea,  the  Scholastics  could  never 
have  accepted  Rousseau's  variant. 

The  diffusion  given  to  the  idea  of  society  by  consent,  by  the 
writings  of  Rousseau  has  obscured  the  fact  of  its  hereditary 
descent.  Rousseau  frankly  acknowledges  his  obligation  to 
Locke,  who  preceded  him  by  a  century. ^^  Locke  in  his  "Second 
Treatise  of  Civil  Government"  had  taught  that  civil  society 
is  juridically  established  by  a  covenant  of  the  people,  which 
compact  the  law  of  nature  obliges  them  to  observe;  but  the 
law  of  nature  on  the  other  hand  justified  sovereignty  in  the 
government  only  as  limited  by  popular  contract.  Locke  made 
sovereignty  consist  in  the  rights,  which  every  man  has  over 
his  own  actions,  conceded  by  compact  to  the  government,  accord- 
ing to  the  measure  of  exigency  for  the  common  welfare.     Hobbes 

"  Tozer,  Rousseau's  Social  Contract,  Introd.,  p.  2. 

"  Janet,  Ristoire  de  la  Philosophie  Politique,  II,  II,  p.  297. 

"  Tozer,  ibid.,  quoting  Rosseau's  Letters  from  the  Mountaiii. 


76  STATE  AND  CHURCH 

had  anticipated  him  on  the  initial  social  existence  by  consent, 
but  Locke,  though  he  avowedly  builds  on  Hobbes,  departs  from 
him  on  the  character  of  sovereignty,  and  adheres  with  frank 
avowal  to  the  teachings  of  Richard  Hooker." 

Hooker,  a  century  still  earlier,  in  his  "Ecclesiastical  Polity" 
had  made  men  pass  from  subjection  solely  to  the  natural  law 
into  subjection  to  law  politic  by  ''an  order  expressly  or  secretly 
agreed  upon  touching  the  manner  of  their  union  in  living  to- 
gether. The  latter  is  that  which  we  call  the  law  of  the  common 
weal."^°  He  adds  that  all  public  government  of  whatever  kind 
arises  from  deliberate  advice,  consultation  and  composition  be- 
tween men,  and  that  sovereignty  resides  ultimately  with  the 
people."  Now  curiously  enough,  though  Hooker  may  seem 
unaware  of  the  chorus  of  Catholic  theologians,  who  in  his  time 
were  defending,  against  the  Divine  right  of  kings,  the  origin 
of  society  by  consent,  and  the  primary  reception  of  sovereignty 
by  the  people  (i.  e.,  the  whole  community),  his  indebtedness  to 
St.  Thomas  Aquinas  is  freely  admitted.^^ 

Of  course  that  does  not  mean  that  Hooker  found  in  St.  Thomas 
a  theory  of  political  government  worked  out  for  him  along 
the  lines  he  followed;  but  he  found  there  and  borrowed  thence 
the  development  of  the  natural  law,  and  specific  equality  of  men, 
their  coalition  by  natural  impulse  into  society,  and  the  origin 
therein  of  political  law.  Moreover,  he  found  sufficiently  indi- 
cated the  juridical  causality  of  consent  for  the  existence  of 
civil  society  in  the  "Summa  Theologica/'  where  St.  Thomas 
accepts  with  approval  St.  Augustine's  definition  that  a  political 
society  (a  people)  is  essentially  "a  multitude  united  by  juridical 
consent  (or  by  agreement  in  law,  the  words  being  juris  consensu) 
and  community  of  interest.  "^^  So  too,  St.  Thomas  insists  that 
civil  power  in  its  actual  existence  is,  in  a  sense,  of  human 
right  and  not  of  Divine.-*    In  fact  he  adds  that  the  reason  why 

-*Tozer,  ibid.,  pp.  20  and  24. 

'"Book  I,  quoted  by  Tozer,  p.  13. 

-"•Tozer,  ihid.,  p.  13. 

**  Tozer,  ihid.,  p.  13. 

*  t^um.  TheoL,  II,  II,  q.  42,  a.  2. 

**Ibid.,  q.  10,  a.  10. 


SOVEREIGNTY  AND  CONSENT  77 

God  chose  her  kings  for  Israel  was  precisely  because  Israel  was 
under  an  exceptional  regime,  a  theocratic  constitution.^^ 

Furthermore,  St.  Thomas  places  the  essential  note  of  sov- 
ereignty, namely,  the  legislative  power,  in  the  people  or  in  the 
vicegerent  of  the  people,  and  assigns  a  reason  for  it,  that  legis- 
lation is  the  necessary  direction  of  means  to  the  end  of  civil 
society,  and  that,  whereas  the  end  of  civil  society  belongs  to 
the  people,  the  direction  also  of  means  to  that  end  must  lie  with 
the  people.^*'  This  position  he  enforces  in  his  defense  of  custom 
prevailing  as  law.  Distinguishing  with  Aristotle  between  a 
community  free  and  independent  and  one  that  is  dependent,  he 
declares  that  in  the  former  the  custom  of  the  people  is  the  will 
of  the  people,  and  the  people  have  the  power  to  make  law ; 
whereas  the  prince,  against  whose  law  the  custom  may  conflict, 
has  the  power  to  make  law  only  as  the  vicegerent  of  the  people.^^ 

Moreover  in  his  defense  of  the  theocratic  constitution  of  the 
people  of  Israel,  prior  to  the  question  of  what  form  of  govern- 
ment may  be  best,  he  lays  down  the  general  principle  that 
for  all  good  governments  it  is  requisite  that  the  people  have 
a  share  in  sovereignty.  He  then  adds  that  the  best  form  of 
government  is  that  wherein  the  people  retain  the  right  of  elect- 
ing its  rulers  from  out  of  the  people.^^ 

From  St.  Thomas  to  Aristotle,  though  a  great  leap  in  point 
of  time,  is  a  short  step  in  philosophic  heredity.  In  fact  in 
support  of  the  last  position  we  have  cited  from  St.  Thomas.  The 
latter  refers  us  to  the  "Politics"  of  Aristotle.^^  Janet  insists 
that  the  principles  of  Aristotle  are  altogether  favorable  to  sov- 
ereignty of  the  people.^"  Indeed,  if  one  will  run  even  cursorily 
through  the  ' '  Politics, ' '  he  cannot  escape  that  impression.  Aris- 
totle lays  down  that  a  State  (civitas),  a  body  politic  (politeia), 
is  a  society  of  freemen.^^  The  government  of  a  household  is 
monarchical,  while  in  civil  government  power  belongs  to  all. 

"Ibid.,  1,  II,  q.  105,  a.  1,  ad  1. 

*'Ihid.,  1,  II,  q.  90,  a.  3. 

"  Sum.  Theol.,  I,  II,  q.  97,  a.  3,  ad  3. 

"  Ibid.,  q.  105,  a.  1,  in  cor. 

"  Comment.  S.  Thorn.,  in  II  Pol.,  leet.  1 ;  III  Pol.,  lect.  5. 

'"  Janet,  Eistoire  de  la  Politique,  I,  II,  2,  p.  297. 

"  Aristotle,  Politics,  III,  6. 


78  STATE  AND  CHURCH 

"There  is  one  rule,"  he  says,  "exercised  over  subjects  who  are 
by  nature  free,  another  over  subjects  who  are  by  nature  slaves ; 
the  rule  of  a  household  is  a  monarchy,  for  every  hou>se  is  under 
one  head;  whereas  constitutional  (i.  e.,  political  or  civil)  govern- 
ment is  a  government  of  freemen  and  equals."^-  All  citizens 
have  in  a  sense  a  claim  to  civil  power.^^  Rulers  and  subjects  are 
from  time  to  time  interchangeable,  because  all  are  equal  {i.  e., 
politically).^*  A  citizen  is  one  who  shares  in  governing  and 
being  governed. ^^  The  government  is  everywhere  sovereign  in 
the  State,  and  the  constitution  is  in  fact  the  government.^'*' 
But  a  constitution  is  an  organization  of  offices,  which  all  the 
citizens  distributed^  Forms  of  government  are  of  several  kinds 
according  as  the  power  is  thus  distributed.^^  Absolutely  speak- 
ing, if  an  individual  happens  to  be  so  eminent  in  virtue  as  to  sur- 
pass all  others,  it  is  just  enough  that  he  should  be  king,^"  but 
always  by  the  choice  of  the  freemen  who  constitute  the  State.*" 
In  every  form  of  government  the  majority  (or,  as  St.  Thomas 
translates  it,  the  many)  ultimately  rule."  None  of  the  principles 
on  which  individual  men  actually  claim  to  rule,  and  to  hold 
other  men  in  subjection,  are  strictly  right.*^  Sovereignty  of  the 
people  is  in  principle  susceptible  of  a  satisfactory  explanation, 
and,  though  not  free  from  difficulty,  seems  to  contain  an  element 
of  truth.*^  Extreme  democracy,  as  a  form  of  government,  must 
recognize  law  as  sfupreme,  and  concede  real  authority  to  its 
mjagistrates.** 

From  all  of  this  it  would  appear  that  the  essential  idea  of 
civil  society  constituted  by  consent,  and  of  fundamental  sov- 
ereignty in  the  people,  has  come  down  to  us  from  a  respectable 

**IUd.,  I,  7. 

"lUd.,  Ill,  13. 

"i&id.,  Ill,  13. 

"  Arist.,  Pol.,  I,  12  and  II,  2. 

**IMd.,  Ill,  6. 

"Ihid.,  IV,  3. 

**Ihid.,  Ill,  7. 

**IUd.,  Ill,  17. 

"/bid.,  IV,  3. 

"/bid.,  IV,  4. 

♦'  Ihid.,  Ill,  13. 

"/bid.,  Ill,  11. 

**  Ihid.,  IV,  4. 


SOVEREIGNTY  AND  CONSENT  79 

source,   however   tangled   and   untrue  the   exaggerated   notions 
thereof  may  have  hecome. 

The  idea  was  indicated  in  Aristotle  and  outlined  in  St.  Thomas ; 
but  it  was  only  when  there  took  place  the  great  contention 
between  the  Empire  and  the  Church,  between  the  civil  power 
of  kings  and  the  ecclesiastical  power  of  the  Papacy,  that  the 
controversy  arose  which  led  step  by  step  to  the  fuller  develop- 
ment in  the  Catholic  schools  of  the  juridical  origin  of  civil 
power.  From  the  middle  of  the  sixteenth  century  both  of  the 
great  palaestras  of  Scholastic  theology,  the  Dominican  and  the 
Jesuit  lecture  halls,  freely  taught  what  in  the  seventeenth 
century  Suarez  so  brilliantly  defended,  to  wit,  that  civil  sover- 
eignty was  through  the  natural  law  directly  received  from 
Almighty  God  by  the  people,  and  thence  entrusted  to  the  rulers 
of  the  State  by  constitutional  consent.*^ 

III. 

In  the  origin  of  civil  society  in  the  concrete  among  men  we 
must  distinguish  at  the  outset  between  the  historic  causes  that 
variously  brought  men  together  in  cities  and  States,  that  deter- 
mined them  to  live  submissively  under  patriarch,  king,  conquer- 
ing general,  or  beneficent  statesman,  as  their  political  head,  and 
the  juridical  title  or  foundation,  in  view  of  whose  exigency 
the  natural  law  bound  men  together  in  concrete  civil  unity, 
into  a  moral  and  juridical  civic  entity,  and  ratified  the  estab- 
lishment of  power  in  the  hands  of  a  legitimate  ruler.  No  one 
in  reason  doubts  today  that  whatever  was  the  historic  cause 
that  diversely  in  diverse  cases  brought  man  and  woman  together 
in  a  family  relation,  whether  it  was  by  purchase  or  forcible 
seizure,  by  paternal  gift  of  the  woman,  by  maternal  wiles,  by 
feminine  witchery  or  by  lover's  ardent  suit,  the  juridical  title 
has  been  and  is  unchangeably  the  same,  viz,  mutual  consent 
to  the  marriage  bond.  Similarly  diverse  instances  of  civil 
society  may  have  had  their  historical  origin  under  variously 
divergent  circumstances,  under  the  influence  of  distinctly  diverse 
causes,  of  patriarchal  expansion,  for  instance,  or  clan  accretion, 

«  Arist.,  Pol,  III,  11. 


80  STATE  AND  CHURCH 

of  conquest  in  war  (just  or  unjust),  of  combination  for  defense 
or  for  trade,  of  colonial  establishment  or  revolutionary  reform ; 
but  in  each  and  all  cases  we  seek  the  juridical  foundation  to 
civic  or  political  unity,  the  title  to  be  recognized  as  a  juridical 
State  at  all,  and  we  declare  it  always  to  be  popular  consent  to 
the  civic  bond. 

For  a  State,  a  political  miit,  a  civil  society,  is  admitted  to 
be  a  moral  union  of  families  and  individuals  for  a  naturally  set 
human  purpose.  A  union  must  have  a  bond,  a  moral  union  a 
moral  bond.  A  moral  bond  must  bind  the  free  acts  of  men, 
the  only  acts  which  can  be  moral ;  and  the  only  true  binding 
force  on  our  free  actions  comes  from  the  obligation  of  law. 
The  obligation,  however,  of  no  law  touches  man  in  the  concrete 
without  a  foundation  in  fact.  Hence  for  every  moral  bond  we 
must  find  such  fundament  or  title ;  and  for  the  union  which 
constitutes  of  men  a  civic  body,  we  must  find  not  merely  the 
historic  causes  or  the  occasions  of  its  existence,  but  the  juridical 
foundation  of  the  civic  bond.  This  we  maintain  to  be  consent. 
In  like  fashion  we  are  in  search  not  of  the  history  of  how 
this  or  that  ruler  came  to  establish  himself  and  exercise  civil 
power;  rather  we  are  looking  for  his  juridical  title  to  the 
rights  of  sovereignty.  We  assert  that  this  is  the  constitutional 
consent  of  the  people,  with  whom  lies  original  and  fundamental 
sovereignty. 

To  come  at  this  scientifically  we  must  take  a  summary  view 
of  the  natural  problem  of  human  life.  God  made  man  ulti- 
mately for  an  abiding  union  of  knowledge  and  love  of  Him, 
in  everlasting  enjoyment  of  His  truth,  goodness  and  beauty; 
in  which  union  we  find  God's  eternal  glory  and  man's  eternal 
blessedness.  God  set  man  on  earth  for  a  period  of  existence 
until  death,  to  fulfil  His  plan  for  the  development  of  human 
life  thereon.  That  development  was  to  be  a  demonstration  of 
Divine  excellence  latent  in  the  powers  of  man  and  nature,  and 
in  human  capacity  to  learn  the  control  of  the  powers  of  nature. 
This  demonstration,  while  it  makes  man  "witness  of  the  glory 
of  God,"  as  Ruskin  has  called  him,*"  likewise  shows  him  grow- 
ing in  the  knowledge  and  love  of  God  through  His  creatures — 

*' Modern  Painters,  II,  3. 


SOVEREIGNTY  AND  CONSENT  81 

which  constitutes  the  highest  glory  of  God  upon  earth — and 
in  its  achievement,  the  temporal  happiness  of  man.  The  con- 
nection between  God's  ultimate  purpose  and  His  earthly  plan, 
between  man's  service  on  earth  and  his  enjoyment  after  death 
is  one  of  merit.  Man  is  to  merit  beatitude  by  service  on  earth, 
in  the  development  of  life  as  planned  by  God.  God  has  put  in 
man  and  in  nature  the  capacities  for  this  development,  has 
imprinted  on  them  the  necessary  impulse  towards  it  (in  human 
reason  by  the  natural  law,,  in  all  things  else  by  the  laws  of 
nature),  and  has  left  man  in  manifold  need  of  the  very  steps 
that  lead  him  on.  Man,  learning  from  his  natural  powers,  his 
specific  impulses  and  his  cognate  needs,  the  details  of  God's 
plan  in  his  regard,  in  consequence  recognizes  therein  the  details 
of  God's  law  bidding  him  carry  out  the  details  of  the  plan. 
In  carrying  these  out  as  hiddeii  man  gives  that  final  touch  to 
his  life  development,  which  is  imputed  to  him  for  merit  of  the 
happiness  of  the  life  that  is  to  come. 

Pursuant  of  his  way  towards  the  natural  development  of  his 
life  powers,  man  comes  to  recognize  that  the  family  relation 
has  place  in  the  fulness  of  the  Divine  plan  of  human  life;  and 
when  he  enters  into  that  relation,  he  is  normally  conscious  both 
of  an  obligation  of  the  natural  law  binding  him  to  all  the 
necessary  conditions  of  that  relation  as  bearing  on  the  purposes 
of  human  life,  and  is  conscious  at  the  same  time  of  rights  which 
the  natural  law  gives  him  unto  the  fulfillment  of  that  obliga- 
tion and  the  promotion  of  life's  purposes.  We  know  this 
definite,  specific  compound  of  obligations  and  rights  as  the 
marriage  bond ;  its  obligations  give  it  the  name ;  but  its  obliga- 
tions on  the  one  side  involve  rights  on  the  other,  and  vice  versa, 
and  the  two  combined  integrate  the  juridical  connection.  As 
a  set  of  duties  and  rights,  of  obligations  and  moral  powers,  it 
has  its  source  in  God,  whence  it  descends  through  the  natural 
law.  As  incumbent  on  any  man  and  wife  in  the  concrete,  no 
one  denies  today  that  it  comes  into  existence  by  consent.  As 
to  the  nature  and  force  of  its  obligations  and  rights,  it  is  of 
Divine  right ;  as  to  concrete  existence  it  is  of  human  right.  The 
principle  of  the  bond  is  the  natural  law;  but  the  foundation 
of  its  presence  in  this  or  that  concrete  couple  is  consent. 


82  STATE  AND  CHURCH 

The  next  step  in  social  consciousness  is  that  men  realize  that 
in  the  mutual  assistance  of  family  life  alone  they  cannot  develop 
human  life  in  its  fulness;  they  cannot  attain,  as  Aristotle  says, 
"the  good  life,"  that  is,  the  perfection  of  life.  They  become 
acutely  aware  of  the  power,  impulse,  and  need  they  have,  bear- 
ing on  what  we  call  civil  society,  for  the  development  of  life's 
full  faculties,  physical,  mental,  and  moral.  They  enter  in  due 
time  upon  this  social  relation,  forming  a  unit  from  which  they 
demand  the  protection  of  rights  and  the  promotion  of  oppor- 
tunities— not  merely  economic,  but  in  every  sense  human — 
for  a  full  life  development,  in  the  active  achievement  and  enjoy- 
ment of  which  may  normally  be  found  man 's  temporal  happiness. 
In  this  second  natural  and  juridical  social  unit  the  elements 
are  held  together  by  a  civic  bond,  embodying  all  the  essential 
obligations  of  co-operation,  and  all  the  essential  rights  of  social 
protection  and  opportunity.  These  essential  obligations  and 
rights  are  not  the  arbitrary  choice  of  men.  They  are  determined 
by  the  natural  purposes  and  exigencies  of  such  civic  coalescence. 
The  civic  bond,  like  the  marriage  bond,  is  a  definite,  specific 
compound  of  obligations  and  rights. 

The  binding  force  of  this  bond  also  comes  from  God  through 
the  natural  law.  But  what  actuates  it  in  this  or  that  group 
of  families,  this  or  that  multitude  of  men,  in  the  concrete? 
Why  not  their  consent?  Consent  is  enough  to  actuate  the  con- 
ventional bond  of  a  business  partnership  between  man  and  man, 
of  a  commercial  treaty  between  nation  and  nation,  of  a  natural 
union  between  man  and  wife.  There  is  no  assignable  reason 
why  it  should  not  suffice  to  determine  the  social  union  of  citizens 
under  the  civic  bond.  In  fact  there  is  explicit  reasou  why  it 
should  do  so. 

If  we  push  on  to  see  why  ultimately  neither  the  authority 
of  parents,  nor  the  weight  of  law,  nor  the  obligation  of  con- 
science, can  make  man  and  woman  husband  and  wife  without 
their  consent,  we  find  that  the  marriage  relation  calls  in  its 
continuity  for  such  a  union  of  wills,  in  constancy  of  mutual 
love  and  common  effort,  as  cannot  be  hoped  for  unless  the 
bond  is  voluntarily  accepted  by  an  act  of  personal  freedom.  If 
we  then  consider  the  demand  for  union  of  wills,  of  co-operation, 


SOVEREIGNTY  AND  CONSENT  83 

of  sacrifice,  of  mutual  civic  altruism  in  peace  and  war,  to  be 
found  in  the  continuity  of  the  civil  relation,  it  is  easy  to  see 
that  it  is  unreasonable  to  expect  it,  unless  the  constituent 
elements  ultimately  come  to  accept  voluntarily  the  civic  bond 
and  its  necessary  eonsequences.  You  may  subject  a  people  by 
force ;  you  may  subdue  its  spirit  by  oppression ;  you  may  main- 
tain supremacy  over  it  by  the  craft  of  subtle  tyranny;  but  you 
can  never  have  a  civic  unit  working  out  by  co-operation  the 
real  happiness  of  all,  unless  the  people  come  at  one  moment  or 
another  to  accept  the  situation  by  consent. 

When  a  multitude  of  people  come  to  grasp,  however  dimly, 
the  natural  life-purposes  incumbent  upon  them  (purposes  in 
themselves  supremely  desirable  as  well),  come,  moreover,  to 
apprehend  the  obvious  fact  that  only  in  civil  union  of  a  concrete 
society  can  these  purposes  be  achieved;  that  this  union  implies 
a  bond  binding  each  of  them,  a  bond  bearing  with  it  definite 
common  civil  duties  and  civil  rights  for  all,  they  have  certainly 
arrived  at  the  threshold  of  a  juridical  union.  In  all  other 
cases  of  juridical  union  contingent  upon  common  action,  in  all 
other  cases  of  natural  and  mutual  obligations  so  contingent,  as 
well  as  in  the  case  of  acquired  natural  rights  over  definite 
means  to  a  natural  end,  the  next  step  is  a  free  act  of  the  will, 
and  the  thing  is  done.  In  perfect  parity,  if  the  multitude  there 
and  then  accept  the  bond  in  question,  you  there  and  then  have 
in  existence  a  new  juridical  entity,  a  juridical  union,  which  men 
call  civil  society.  They  may  have  been  entirely  free  to  consent, 
or  for  one  reason  or  other  may  have  been  morally  bound  to 
consent;  they  may  have  consented  in  written  instrument  or 
spoken  word;  in  the  cheerful  enthusiasm  of  subordination  and 
co-operation,  with  neither  written  or  spoken  pledge,  or  in  the 
silent  omission  of  all  protest  and  repudiation,  when  such  protest 
would  be  efficient  or  a  matter  of  duty ;  they  may  have  consented 
all  together,  or  group  after  group  yielding  in  course  of  time; 
they  may  have  consented  to  the  entirety  of  the  bond  at  once 
or  by  degrees  to  the  different  duties  of  its  content.  It  matters 
not.  The  one  substantial  thing  in  the  establishment  of  a  State 
as  of  a  family,  in  joining  a  civic  unit  together  with  the  civic 
bond  as  in  joining  a  family  unit  with  the  marriage  bond,  is 


84  STATE  AND  CHURCH 

the  voluntary  and  free  consent  of  those  who  establish  the  union. 
The  consent  of  the  community  then  is  the  fact  which  of  its 
nature  spells  an  exigency  that  the  natural  law  should  supply 
the  essential  juridical  ingredient  there  and  then  necessary  for 
the  natural  function  and  juridical  cohesion  of  civil  society; 
and  that  is,  after  all,  what  we  understand  by  a  foundation, 
a  juridically  determinant  cause  of  the  existence  of  that  juridical 
effect,  which  is  found  in  a  multitude,  when,  instead  of  remain- 
ing an  incoherent  assembly  of  discrete  atoms,  it  is  bound  together 
into  the  social  union  which  we  knov/  as  a  body  politic  or  a 
State.  It  is  indeed  the  only  fact  that  accounts  juridically  for 
that  union,  just  as  consent  is  the  only  juridical  cause  that 
accounts  for  the  juridical  existence  of  a  marital  union.  Vicin- 
age does  not  do  it,  nor  kindred  blood.  Common  needs  may  be 
a  motive  of  consent,  and  even,  in  a  conceivable  case,  extreme 
enough  to  give  rise  to  an  obligation  to  yield  the  consent ;  but  of 
themselves  they  do  not  place  the  consent,  nor  sufficiently  substi- 
tute for  it  in  placing  the  social  bond.  Such  conditions  will  not 
suffice  in  the  case  of  the  matrimonial  union.  Why  should  they 
in  the  case  of  the  more  extensive  and  complicated  unit?  Patri- 
archal descent,  occupancy  of  the  territory  of  one  and  the  same 
landed  proprietor,  subjection  by  conquest,  none  of  these  are 
claimed  to  be  sufficient  juridically  to  make  a  discrete  multitude 
into  a  civil  community,  except  in  so  far  as  the  patriarch,  land- 
holder or  conqueror  has  ipso  facto  sovereignty  over  those  who 
fall  under  the  respective  categories  correlative  to  each  of  them. 
But  we  shall  proceed  at  once  to  show  that  sovereignty  needs  a 
firmer  ground,  lies  originally  with  the  people,  and  is  found 
derivatively  elsewhere  only  by  the  people's  consent. 

IV. 

When  men  in  the  fulfilment  of  God's  plan  establish  the  juri- 
dical person  of  the  body  politic  by  their  consent  to  this  juridical 
union  for  the  general  welfare,  the  natural  law  necessarily 
concedes  to  that  person  in  the  very  bond,  which  creates  it,  all 
the  rights  and  powers  necessary,  and  even  those  connaturally 
proportionate,  to  the  purpose  of  the  common  weal.    The  powers 


SOVEREIGNTY  AND  CONSENT  85 

essential  to  each  and  every  State  will  be  congenital  rights  of 
the  body  politic.  If  we  conceive  the  thing  as  in  a  condition 
of  juridical  genesis,  we  ask  ourselves,  What  are  the  first  powers 
that  body  needs?  The  answer  is  the  power  to  organize  itself 
under  a  definite  form  of  government  of  its  choice ;  the  power  to 
choose  the  individuals  in  whom  the  governmental  powers  are 
stably  to  reside,  to  determine  the  stable  limitation  of  these 
powers  by  reservation  of  power  to  the  community  itself,  and 
the  method  of  succession  in  their  possession ;  the  power  to 
govern  the  community  ad  interim  either  directly  or  by  the 
appointment  of  provisional  governors;  the  power  to  reorganize 
the  government,  whenever  its  prior  organization,  whether  from 
forces  within  or  without,  goes  to  pieces,  or  permanently  fails 
to  function  for  the  general  welfare,  or  in  new  times  and  cir- 
cumstances fails  to  meet  the  exigencies  of  the  common  weal; 
the  right,  finally,  to  be  the  authentic  judge  of  conditions  requir- 
ing organization.  I  fancy  we  need  not  elaborate  the  point  that 
substantially  these  powers  are  from  the  start  requisite  to  the 
essential  purpose  of  civil  society;  nor  that  by  reason  of  Grod's 
ordering  human  soeiety  in  His  plan  of  human  life,  and  by 
natural  consequence  of  men  putting  one  such  into  existence, 
this  society  has  the  above  rights  and  powers.  They  are  as 
obviously  involved  in  the  content  of  the  civic  bond  as  are 
all  the  rights  and  privileges  necessary  to  the  natural  purpose 
of  marital  life  involved  in  the  marriage  bond. 

These  powers  may  be  and  sometimes  are  called  constituent 
powers,  authority  to  enact  a  constitution  or  fundamental  law, 
a  law,  namely,  in  which  the  organization  of  the  government  is 
provided  for  as  above,  and  the  reserved  powers  of  the  com- 
munity declared.  In  point  of  fact  that  is  what  is  meant  by 
popular  siovereignty,  that  is  to  say,  the  sum  of  supreme  jurisdic- 
tion necessary  to  provide  the  organization  and  government  of 
a  State,  as  inherent  in  the  community  as  a  body  politic,  a  moral 
person,  from  the  first  instant  of  its  juridical  existence;  juris- 
diction coming  from  God  through  the  natural  law  in  the  civic 
bond  which  makes  of  a  multitude  a  people,  a  community,  a 
State.  It  is  quite  evident  that  such  sovereign  powers  exist  in 
some  person  or  other  within  the  range  of  the  community,  but 


86  STATE  AND  CHURCH 

the  contention  for  popular  sovereignty  is  that  they  are  to  be 
found  in  the  moral  person  of  the  community  itself. 

It  may  appear  that  what  is  commonly  known  as  sovereignty, 
the  supreme  powers,  namely,  in  a  sovereign,  whether  he  be  tsar, 
kaiser,  or  king,  a  class  of  nobles  or  a  republican  president,  is 
not  quite  the  same  as  the  constituent  and  other  powers  above 
enumerated.  That  is  true,  though  not  in  a  sense  as  mutually 
exclusive  as  might  be  apprehended.  Sovereign  powers,  as  they 
exist  in  actual  rulers,  are  the  sum  of  jurisdiction  necessary  for 
actual  normal  government,  stably  set  indeed  in  the  rulers  in 
order  so  to  govern.  They  suppose  then  a  determinate  form  of 
government,  definite  rulers  and  definite  powers  and  a  deter- 
mined mode  of  succession ;  and  finally  they  imply  the  posses- 
sion by  the  rulers  of  the  fulness  of  authority  necessary  for  their 
function ;  whereas  on  the  other  hand  the  sovereignty  attributed 
to  the  people  seetns  rather  made  up  of  preliminary  powers  of 
organization,  and  not  of  powers  to  govern  at  all.  That  is  a 
mistake.  Popular  sovereignty  is  both  one  and  the  other.  As  a 
matter  of  fact  the  community  has  in  itself  all  the  powers  of 
governing  provisionally  in  the  interim  of  organization;  may 
organize,  if  it  so  choose  and  the  thing  is  expedient,  a  purely 
democratic  form  of  government,  and  so  retaining  all  its  powers 
may  stably  govern  the  St-ate.  In  one  word  original  sovereignty 
as  in  the  people  includes  the  governing  powers  as  well  as  the 
powers  of  organization.  Outside  of  an  absolute  democracy  the 
people  entrust  the  governing  powers  to  the  rulers,  retaining  the 
organizing  powers  for  the  emergency  of  necessary  reorganiza- 
tion. 

The  important  question  demanding  a  convincing  reply  is, 
Why  should  these  powers  appear  first  in  the  people,  in  the 
community  itself  ?  The  metaphysician  would  answer :  "Natura 
non  deficit  in  necessariis,"  which  the  jurist  translates,  in  terms 
of  ethics,  that  God  lays  no  natural  duty  or  function  upon  any 
person,  moral  or  physical,  without  naturally  {i.  e.,  through  the 
natural  law)  communicating  to  that  person  all  the  powers 
necessary  to  the  discharge  of  the  said  duty  or  function.  Now  it 
is  quite  evident  from  what  we  have  said  above  *^  on  the  place  of 

"  Supra,  p.  19. 


SOVEREIGNTY  AND  CONSENT  87 

civil  society  in  the  Creator's  plan,  that  on  the  person  of  the  body 
politic,  once  existent,  are  naturally  incumbent  the  duty  and 
function  of  providing  for  the  purpose  of  civil  society,  for  the 
security  of  rights  and  for  the  promotion  of  civic  opportunities, 
in  a  word,  of  directing  civic  co-operation  to  civil  society's 
specific  welfare.  It  is  equally  clear  that  such  provision,  such 
direction  of  co-operation,  cannot  be  had  without  the  possession 
of  all  the  moral  powers  indicated  above  as  the  content  of  sov- 
ereignty. Nor  will  it  answer  this  exigency  to  say  that  such 
powers  must  be  somewhere  within  the  limits  of  the  community, 
but  not  necessarily  be  the  powers  of  the  people  as  such.  For, 
as  St.  Thomas  insists,  "in  this  matter,  as  in  everything  else,  to 
him  is  given  the  power  to  order  the  means  to  the  end,  to  whom 
that  end  properly  belongs."*^  Now  the  end  of  civil  society 
does  not  properly  belong  to  any  individual  person,  or  individual 
group  of  persons  in  preference  to  others  in  the  community,  but 
to  the  community  as  such,  to  the  people  as  a  body  politic,  a 
moral  person.  It  is  the  community's  common  weal  or  general 
welfare,  which  is  the  goal  of  civil  society,  an  axiom  recognized 
from  Aristotle  down.*^ 

Natural  rights  are  to  be  found  in  no  person  except  in  con- 
sequence of  natural  title,  of  natural  exigency  of  those  rights 
with  a  view  to  the  natural  purpose  of  life.  Our  congenital 
rights  are  the  same  in  all  of  us,  for  their  title  in  human  nature, 
and  that  belongs  alike  to  each  of  us.  Rights  other  than  con- 
genital are  acquired  as  we  become  possessed  of  contingent 
title  or  exigency  thereto.  The  exigency  for  civil  sov- 
ereignty does  not  naturally  arise  in  any  man,  or  any  individual 
group  of  men,  but  only  in  a  body  politic ;  for  it  is  a  naturally 
necessary  means  onlj^  to  an  end  proper  only  to  a  body  politic. 
The  natural  exigency  in  any  person  whatsoever  outside  of  the 
body  politic  regards  only  a  private  and  not  a  public  purpose, 
and  springs  from  a  relation  of  commutative  justice  between 
independent  equals  or  domestic  justice  in  the  bosom  of  a  family ; 
whereas  rights  of  civil  sovereignty  come  into  existence  only  for 

*^  Sum.  Theol.,  I,  II,  q.  90,  a.  3,  m  corpore  articuli;  quoted  above  in 
Note  25. 

*»  Politics,  VII,  9;  III,  7  and  III,  9. 


88  STATE  AND  CHURCH 

a  public  purpose,  the  common  good  or  general  welfare,  and  con- 
note a  relation  of  civic  legal  and  distributive  justice.  A  public 
purpose  is  naturally  proper  only  to  a  public  person,  to  the  person 
of  the  State;  and  the  proper  juridical  term  of  civic  legal  justice 
as  well  as  the  proper  juridical  subject  of  civic  distributive 
justice  is  to  be  found  only  in  the  person  of  the  commonwealth,  or 
in  that  person's  representative  as  such. 

Naturally  enough  the  position  here  taken  has  been  contro- 
verted. I  fancy  that  the  landed  aristocracies  would  wish  to  con- 
trovert today,  and  maintain  that  where  one-half  of  one  per 
cent  of  the  inhabitants  of  a  country  own  all  its  land,°°  and  are 
thus  in  possession  of  the  ultimate  source  of  its  wealth,  it  should 
govern  the  community,  because  it  has  most  at  stake  in  the  com- 
munity. This  would  be  to  argue  that  the  title  to  power  over 
the  general  and  public  welfare  of  society  is  to  be  found  in  the 
individuals  who  have  the  largest  material  interests  of  private 
ownership;  and  here  the  capitalist,  the  banker  and  the  money- 
lender would  contest  the  landlord  claim.  The  only  way  one 
could  twist  a  title  out  of  that  would  be  to  say  that  he  must 
necessarily  have  the  care  of  the  public  good,  to  whose  private 
gain  that  good  is  subordinated  by  nature,  as  a  means  to  an  end. 
Nature  never  yet  subordinated  one  man's  natural  good  as  a 
means  to  another  man's  aims,  let  alone  the  natural  welfare 
of  a  whole  people  to  an  individual's  private  profit.  The  thing 
savors  of  slavery. 

Originally,  doubtless,  civil  government  began  under  the  head- 
ship of  the  patriarch  of  the  clan ;  and  paternal  rights  in  the 
father  were  a  prelude  to  civil  powers  in  the  first  patriarch, 
which  descended  from  him  through  eldest  sons,  so  that  at  any 
given  time  claim  to  the  possession  of  sovereignty  was  based  on 
primogenitary  descent  from  the  first  sovereign,  who  could  be 
historically  proved  to  have  ruled  over  the  nation. "^^^  To  conclude 
from  that  historical  fact  that  the  original  natural  title  to  sov- 
ereignty is  in  extensive  paternity  is  a  far  cry.  It  involves  that 
by  natural  law  eivil  sovereignty  is  absolute  in  the  actual  ruler, 
limited  only  by  the  demands  of  the  common  civic  good ;  and 

■^  Cf.  J.  Murphy,  Dictionary  for  Social  Students,  p.  33. 

"  Aristotle,  Politics,  I,  2 ;  Hallam,  Literature  of  Europe,  III,  p.  160. 


SOVEREIGNTY  AND  CONSENT  89 

that  both  ill  origin  and  transmission  it  is  entirely  independent 
of  the  consent  of  the  people.  But  a  father's  right  to  govern  his 
son  cannot  be  proved  out  of  any  natural  exigency — such  as  that 
by  which  it  is  proved  to  exist  at  all — to  extend  beyond  the  adult 
maturity  of  the  son ;  and  when  the  latter  founds  his  own  family, 
his  parental  rights  are  as  strong  and  exclusive  over  his  own 
family  as  his  father's  is  over  his,  and  so  every  head  of  a 
family.  The  general  welfare,  which  is  the  reason  of  the  existence 
of  civil  power,  cannot  be  said  to  be,  by  the  natural  law,  properly 
and  peculiarly  the  patriarch's;  nor  his  permanent  care,  unless 
you  extend  a  man's  responsibility  (in  the  matter  of  life-pur- 
poses) for  all  his  progeny  to  the  -nth  generation;  nor  his  pur- 
pose and  profit,  unless  you  make  all  his  descendants  his  slaves. 
It  is  the  common  profit,  the  common  benefit,  and  it  is  to  be  put 
before  the  profit,  benefit  and  happiness  of  the  ruler. 

Nor  is  the  patriarch's  case  strengthened  by  the  fact  that  he 
has  the  added  title  of  landlord  over  the  entire  territory  occupied 
by  the  clan,  and  can  extend  his  right  of  property  over  wide  lands 
to  territorial  sovereignty,  and  then  to  civil  jurisdiction  over  the 
tenants  and  all  inhabitants  of  the  aforesaid  territory.  This 
really  weakens  the  case.  For  though  a  patriarch's  feeling  for 
his  blood  descendants  might  be  a  reason  to  expect  him  to  set 
the  general  welfare  above  his  own,  yet  the  landed  proprietor 
owns  land  for  his  own  profit,  and  in  the  administration  of  it, 
and  of  any  government  of  the  occupants  thereof,  would  natu- 
rally consider  his  own  proprietary  rights  and  gain  first,  and  the 
welfare  and  rights  of  tenants  in  an  entirely  secondary  place, 
and  much  as  means  to  the  former.  History  justifies  our  argu- 
ment against  him,  for  the  landlord  government  has  been  a 
mockery  of  civil  government  as  primarily  for  the  benefit  of  the 
governed. 

How  then,  if  we  do  not  admit  the  patriarchal  or  proprietary 
title  to  civil  sovereignty,  are  we  to  account  for  the  obvious  fact 
that  historically  this  sovereignty  obtained  was  exercised  in 
many  places  and  in  many  cases  with  a  measure  of  beneficence? 
We  answer,  by  consent  or  usurpation.  Why  men  would  natu- 
rally consent  to  patriarchal  rule  and  find  it  beneficent,  and  how 
civil  rule  might  be  usurped  and  turned  to  oppression  is  well 


90  STATE  AND  CHURCH 

expressed  in  a  passage  of  Aristotle,  which,  while  a  summary  of 
the  past  before  his  time,  savors  of  a  prophecy  of  the  centuries 
that  were  to  come. 

The  first  governments  were  kingships,  probably  for  this  reason, 
because  of  old,  when  cities  were  small,  men  of  eminent  virtue  were  few. 
They  were  made  kings  because  they  were  benefactors,  and  benefits  can 
only  be  bestowed  by  good  men.  But  when  many  persons  equal  in  merit 
arose,  no  longer  enduring  the  pre-eminence  of  one,  they  desired  to  have 
a  commonwealth,  and  set  up  a  constitution.  The  ruling  class  soon 
deteriorated  and  enriched  themselves  out  of  the  public  treasury;  riches 
became  the  path  to  honor,  and  so  oligarchies  naturally  grew  up.  These 
passed  into  tyrannies  and  tyrannies  into  democracies;  for  love  of  gain 
in  the  ruling  classes  was  always  tending  to  diminish  their  number,  and 
so  to  strengthen  the  masses,  who  in  the  end  set  upon  their  masters  and 
established  democracies.  Since  cities  have  increased  in  size,  no  other 
form  of  government  appears  to  be  any  longer  possible. ^^ 

The  contention  that  the  patriarch  and  his  primogenitary 
descendants  are  by  nature  and  natural  circumstances  so  evi- 
dently better  fitted  to  govern  than  any  other  member  of  the 
community  as  to  be  thus  indicated  by  nature  (on  a  par  with  the 
father  in  the  family)  as  the  natural  recipient  of  sovereign 
power  is  both  in  theory  and  in  fact  of  so  tenuous  a  texture  that 
it  needs  but  the  breath  of  denial  to  disrupt  it.  The  whole 
question  in  a  nutshell  comes  to  this:  Whose  rights  and  interests 
are  paramount,  the  community's  or  those  of  the  patriarch  and 
his  primogenitary  descendants;  and  on  whom  has  the  natural 
law  put  the  duty  of  the  life-development  of  the  community  in 
the  plan  of  God,  on  the  community  or  on  the  patriarch?  The 
life  is  the  life  of  all  in  the  community ;  its  development  is  a  duty 
of  the  community ;  its  juridical  purpose  of  existence  is  precisely 
that.  This  purpose  is  paramount  to  the  development,  profit, 
benefit,  or  interest  of  any  individual,  and  the  right  to  it  supreme. 

In  the  sixteenth  century  Bodin  maintained  that,  though 
patriarchs  were  the  first  civil  governors,  the  patriarchal  State 
had  been  long  since  overturned  by  force  of  arms,  and  that  the 
sovereigns  of  his  day  should  find  their  original  title  in  right  of 
conquest.     Assuredly  not  by  unjust  conquest,  unless  we  wish  to 

"Aristotle,  Politics,  III,  15  (Jowett's  Translation,  I,  p.  100). 


SOVEREIGNTY  AND  CONSENT  91 

confound  right  with  might.  The  victor  in  a  just  war  may 
certainly  exact  the  right  or  rights  for  which  he  justly  went  to 
war;  but  these  belonged  to  him,  conquest  or  no  conquest.  He 
may  rightly  claim  indemnity  also  for  necessary  losses  sustained 
in  the  prosecution  of  the  war,  as  these  are  damages  justly  de- 
manded to  repair  injury  suffered ;  and  one  may  also  remark  that 
the  title  to  these  in  the  court  of  conscience  and  the  natural  law 
does  not  suppose  victory.  Finally,  he  may  demand  reasonable 
security  against  repetition  of  the  offense ;  but  the  foundation  of 
this  is  the  right  which  he  has  against  threatened  injury  rather 
than  the  conquest  by  which  he  is  enabled  to  enforce  that  right. 
Conquest  in  itself  is  but  a  robber's  title,  whether  the  prey  be 
territory,  booty,  or  men.  Conditions  may  be  conceived  to  be 
such  that  the  conquered  community  cannot  properly  repair 
damage  and  give  security  except  by  accepting  the  sovereignty 
of  the  conqueror.  It  then  may  be  bound  to  consent  (at  least 
temporarily)  to  such  sovereignty,  just  as  a  man  may  be  bound 
in  conscience  to  marry  a  girl  whom  he  has  wronged  under 
promise  of  marriage ;  but  neither  in  one  case  or  the  other  can 
the  juridical  bond  be  proved  to  arise  without  consent. 
Coercion  may  enforce  subjection,  as  it  may  enforce  cohabitation, 
but  it  does  not  create  the  natural  bond  without  the  natural 
title.  You  may  make  a  plantation  of  slaves  and  call  it  a  realm, 
but  you  cannot  have  a  body  politic  to  rule,  nor  authority  to 
rule  over  one,  except  you  have  the  foundation  of  consent.  This 
of  course  is  pushing  the  argument  to  an  extreme.  Suarez  ad- 
mitted that  a  conqueror  could  under  the  circumstances  posited 
above  annex  territory  and  incorporate  its  inhabitants  into  his 
own  pre-existing  State.  The  territory  raises  no  insuperable 
difficulty,  and  the  inhabitants  thereof  may  pass  as  alien  resi- 
dents under  the  sovereignty  thus  extended  over  the  territory, 
but  consistently  with  the  original  principle  we  have  laid  down 
they  do  not  become  citizen-subjects  until  they  have  consented  to 
transfer  of  allegiance. 

On  the  eve  of  the  English  Revolution  of  1688  Filmer  in  his 
"Patriarch"  raised  a  weak  cry  in  favor  of  existing  absolute 
rule,  resting  the  thrones  of  Europe  on  patriarchal  descent.  In 
the  early  nineteenth  century  De  Haller  reacting  against  the 


92  STATE  AND  CHURCH 

principles  of  the  French  Revolution''^  demolished  the  "Contrat 
Social"  of  Rousseau'^*  and  thought  to  find  a  justification  in  all 
nature  for  the  principle  that  rule  belongs  to  the  strong,  declar- 
ing that  authority  is  to  be  found  in  him  who  has  a  superior 
excellence  over  those  who  have  need  of  the  benefit  of  that 
superiority,  by  a  law  of  nature  to  which  men  necessarily  con- 
form.^^  He  puts  the  sovereignty  of  a  prince  in  his  own  par- 
ticular independence,  which  is  just  in  so  far  as  it  is  his  own 
private  property,  his  subjects  being  those  who  have  not  achieved 
their  own  independence  and  owing  to  circumstances  depend  upon 
the  superiority  of  the  prince  for  their  protection,  help,  and 
guidance.^*'  He  makes  monarchy  the  initial  form  of  civil  gov- 
ernment and  places  its  sovereignty  in  independent  superiority 
established  chiefly  by  the  titles  of  patriarch,  territorial  pro- 
prietorship, and  militarj^  conquest. '^^^  Father  Taparelli,  S.J., 
with  keener  philosophical  acumen  and  singular  felicity  of  style 
presents  De  Haller's  theory  in  the  strongest  shape  in  which  an 
appeal  could  be  made  for  it,  narrowing  the  formal  part  of  the 
title  to  sovereignty  to  a  juridical  superior  excellence  and  fitness 
to  govern  to  be  found  in  the  exclusive  prior  rights  of  patriarch, 
proprietary^,  or  conqueror/'^  Both  De  Haller  and  Taparelli 
allow  for  an  exceptional  case  in  which  independent  equals  may 
establish  a  form  of  government  by  consent,  with  the  designation 
of  the  ruler  by  the  community.''"  In  its  last  form  the  theory  has 
had  the  subsequent  support  of  many  conservative  minds  down  to 
our  own  day.  Yet  its  purpose  is  more  admirable  than  its  ground 
firm.  Paternal  authority,  proprietary  rights,  and  military  con- 
quest cannot  transform  themselves  into  a  natural  authority 
specifically  distinct,  whose  purpose  in  God's  plan  is  the  general 
welfare  of  the  community  concerned,  of  which  He  laid  the  duty 
on  the  body  politic  itself. 

"  Restauration  de  la  Science  Politique,  Introd. 
"^Ihid.,  chap.  6. 
"  Ihid.,  chap  13. 
"Jfttd.,  Introd. 
"Ihid.,  chap.  24. 

"  Saggio  Teoretico  di  Diritto  Naturale,  Dissert.  II,  cap.  9. 
"  De  Haller,  Restauration  de  la  Science  Politique,  chap.  18.     Taparelli, 
Saggio  Teoretico  di  Diritto  Naturale.  Dissert.  II,  cap.  9,  nn.  519-523. 


SOVEKEIGNTY  AND  CONSENT  93 

Nor  can  any  of  these  prior  rights  be  said  to  establish  a 
natural  title  to  civil  power.  For  a  natural  title  to  civil  power, 
a  title  in  the  nature  of  the  thing,  should  show  special  fitness, 
physical  or  moral  or  both,  for  the  task  of  authoritatively  guiding 
the  people  to  the  goal  of  the  general  welfare ;  should  show  it  in 
reality  and  not  in  appearance  only  with  something  like  evidence 
and  not  mere  plausibility  exclusively  in  the  person  claiming 
the  power,  and  per  se,  i.  e.,  in  the  ordinary  run  of  human  events. 
These  characteristics  we  demand  in  the  title  of  a  father  to  be 
head  of  the  family,  and  it  is  only  on  the  ground  of  the  absence 
of  one  or  the  other  of  them  that  an  argument  can  be  raised  to 
dispute  the  man's  natural  right  in  preference  to  the  woman. 
Now  in  the  ordinary  run  of  human  events  physical  fitness 
is  not  pratieally  exclusive;  nor  moral  fitness  either  for  that 
matter.  Hence  the  argument  has  passed  in  the  course  of  con- 
troversy to  juridical  fitness  from  the  presence  of  some  right  hav- 
ing a  special  bearing  on  civil  power,  such  as  the  amplified 
paternal  right  of  the  patriarch,  the  right  of  property  in  a  ter- 
ritorial landlord,  the  right  of  conquest  in  a  victor  at  war.  But 
we  have  to  note  that  such  rights  proceed  hj  commutative  justice 
or  domestic  jurisdiction,  the  former  of  which  is  primarily  for 
the  benefit  of  the  individual,  the  latter  for  the  benefit  of  the 
individual  family;  and  neither  of  them  has  particular  bearing 
on  legal  justice  nor  do  they  necessarily  manifest  a  tendency 
and  obligation  to  send  one's  activity  forth  out  of  one's  own 
personal  circle  to  labor  for  the  general  welfare.  The  moral 
person  of  the  community  itself,  however,  is  linked  together  by 
legal  justice,  and  as  such  has  both  the  natural  tendency  and  obli- 
gation to  work  primarily  for  the  common  weal.  We  must  not  con- 
sider sovereignty  as  private  property  but  as  a  public  trust. 

The  rights  of  sovereignty  lie  where  the  duty  falls,  by  the  same 
law  and  precisely  on  that  title.  The  duty  of  achieving  that 
precise  element  of  the  Divine  plan  of  human  life,  intended  to 
bo  achieved  in  civil  society,  God  laid  on  that  natural  moral  person 
itself,  not  upon  another;  primarily  and  paramountly  for  its 
own  benefit,  the  greater  welfare,  and  not  for  the  advantage  of 
any  individual.  The  sovereignty  which  is  necessary  to  accom- 
plish this  achievement,   to  fulfil  this  dutj-,    God   through   the 


94  STATE  AND  CHURCH 

natural  law  put  upon  the  people,  the  State,  the  civil  society 
itself.  The  natural  law  bestows  the  power  only  where  and  when 
the  exigency  arises;  the  natural  exigency  for  sovereignty  arises 
only  in  the  people,  and  precisely  at  the  moment  when  the  mul- 
titude juridically  coalesces  into  a  State.  Neither  in  theory  nor 
in  practice  will  anything  stay  a  resolute  people  who  have  the 
strength,  from  readjusting  their  form  of  government,  whether 
a  republic  or  a  monarchy,  except  the  fact  that  the  government 
is  being  properly  and  successfully  conducted  for  the  general 
welfare  with  the  protection  of  the  rights  of  all  and  the  exclusion 
of  none  from  a  fair  opportunity  to  develop  human  life  along 
the  lines  indicated  by  the  nature  of  man. 

This  may  bring  the  reader  to  ask  whether  by  repudiating 
Rousseau's  Social  Contract  and  establishing  society  by  natural 
consent  with  sovereignty  as  a  new  and  distinct  power  descending 
from  God  through  the  natural  law  we  have  not  reverted  to  the 
Divine  right  of  sovereignty  ?  Yes  and  no  :  To  the  Divine  right 
of  kings  or  other  individual  rulers  to  their  sovereignty,  no;  to 
the  Divine  right  of  the  people  to  their  sovereignty,  yes.  The 
phrase  Divine  right  {jure  divino)  signifies  literally  by  Divine 
law,  and  in  a  general  sense  all  right  is  Divine,  i.  e.,  ultimately 
deriving  its  force  from  God's  eternal  law.  "By  Divine  right" 
in  a  special  and  technical  sense  signifies  from  the  law  or  will  of 
God  without  the  mediation  of  any  human  law  or  will,  and  in 
this  sense  a  Divine  right  in  a  man  means  a  right  thus  immediately 
received.  Now  Divine  law  is  twofold,  positive  and  natural ;  the 
former  is  over  and  above  the  exigencies  of  created  nature  and 
is  found  in  the  Revealed  law;  the  latter  follows  the  exigencies 
of  created  human  nature  and  is  formulated  by  human  reason. 
The  powers  given  to  Moses  in  the  Old  Covenant  and  to  St.  Peter 
and  his  successors  in  the  New  are  of  Divine  positive  right. 
James  I  of  England,  the  great  champion  of  the  Divine  right 
of  Kings,  in  as  much  as  he  claimed  in  his  kingship  the  plenitude 
of  spiritual  power  over  Christ's  Church  in  England,  doubtless, 
so  far  forth  at  least,  intended  that  his  sovereignty  was  from  the 
Revealed  law  and  thus  of  Divine  positive  right,  and  moreover 
he  sought  to  prove  his  theory  of  sovereignty  from  the  law  re- 
vealed in  the  Scriptures.     Yet  he  could  not  well  claim  his  sov- 


SOVEREIGNTY  AND  CONSENT  95 

ereignty  as  a  king  from  that  source,  unless — as  Suarez  argued  ®° 
— he  was  prepared  to  show  that  God  by  special  revelation  or  by 
some  extraordinary  sign  had  elected  him  or  one  of  his  pro- 
genitors King  of  England. 

The  keener  minds  defending  Divine  right  of  kingship  soon 
dropped  the  argument  from  Scripture  with  its  insinuation  of 
right  from  Revealed  law,  and  fell  back  on  the  natural  law. 
This  left  the  issue  of  Divine  right  to  be  whether  on  the  one  hand 
the  natural  law  bestowed  sovereignty  immediately  upon  the 
rulers  either  by  original  title,  whether  of  patriarch,  proprietary, 
conqueror,  consent  or  prescription,  or  by  derivative  title  from 
such  original  possessor  of  civil  power,  without  in  any  way  deriv- 
ing said  power  from  the  people ;  or  whether  on  the  other  hand  the 
actual  individual  rulers  were  never  original  holders  of  sov- 
ereignty, but  only  subsequent  possessors  by  derivative  title 
from  the  sole  original  holder,  the  people.  In  the  former  case 
the  power  of  kings,  whether  original  or  derived,  would  be  by 
Divine  right  directly  from  the  natural  law;  in  the  latter  by 
human  right  (jura  humano)  of  constitutional  law  or  popular 
transference.  Hence  the  doctrine  of  the  Schoolmen  was  not  the 
doctrine  of  Divine  right  for  the  sovereignty  of  actual  rulers, 
but  only  for  the  sovereignty  of  the  people. 

Cardinal  Zigliara  not  quite  a  half  century  ago  originated 
the  theory  that  while  the  consent  of  the  people  was  the  neces- 
sary title  to  civil  sovereignty,  it  was  not  a  derivative  title,  but 
an  original  one.^^  Hence  the  people  was  not  the  original  holder 
of  civil  power,  transmitting  it  to  its  rulers  under  an  established 
form  of  government,  but  merely  the  sole  legitimate  designator 
of  the  person  to  possess  sovereignty,  who  in  consequence  of  such 
designation  always  received  its  power  directly  from  God,  though 
in  virtue  of  popular  consent.  A  more  recent  Roman  authority, 
while  conceding  to  the  people  constituent  powers,  defends  the 
same  view  in  regard  to  governing  sovereignty,  and  maintains 
that  as  in  virtue  of  the  people's  constituent  powers  governing 
sovereignty  was  by  way  of  title  at  the  free  disposal  of  the  peo- 
ple, and  as  it  is  present  in  actual  rulers  juridically  by  the  free 

"Suarez,  Defensio  Fidei  CathoUcae,  III,  III,  7. 

"  Zigliara,  Jus  Naturae,  Lib.  II,  Cap.  2,  Art.  3,  No.  12. 


96  STATE  AND  CHURCH 

act  of  the  popular  will,  it  must  be  said  to  be  invested  in  the  said 
rulers  by  human  right  and  not  by  Divine."^ 

The  principal  ground  in  reason  for  this  position  that  the  con- 
sent of  the  people  is  not  a  derivative  title  is  the  supposition  that 
the  community  as  such  cannot  be  the  original  possessor  of  gov- 
erning sovereignty  before  determining  its  form  of  government 
and  its  stable  rulers,  because  the  community  as  a  whole  is  not 
per  se  fitted  by  nature  to  possess  and  exercise  such  governing 
powers.  The  ground  does  not  seem  conclusive,  and  that  for 
two  reasons.  First,  the  unfitness  for  possession  and  exercise 
of  governing  powers  appear  only  in  case  of  too  populous  and 
ill-educated  communities ;  for  a  community  of  moderate  propor- 
tions and  of  a  fair  amount  of  civil  education  can  evidently  con- 
duct (as  has  been  done  in  the  past)  civil  government  under 
the  form  of  an  absolute  democracy.  Now  the  fact  of  large  size 
and  of  lack  of  essentially  necessary  civil  education  is  a  mere  ac- 
cident and  not  a  per  se  condition.  Per  se,  civil  communities 
normally  begin  in  small  compass,  where  the  essentials  of  civil 
government  are  sufficiently  known.  Secondly,  even  if  the  con- 
trary were  true,  it  does  not  follow  that  the  natural  law  would 
not  concede  sovereignty  to  the  whole  community  as  such,  even 
though  the  exercise  of  it  necessarily  postulated  the  entrusting 
of  its  governing  powers  to  definite  individuals  under  a  deter- 
minate form  of  government.  For  returning  to  our  original 
argument,  the  community  as  such  has  the  duty  of  effecting  the 
normal  purpose  to  be  accomplished  by  eivil  society,  and  in  con- 
sequence has  all  the  rights  that  are  the  necessary  means  to 
that  purpose,  of  which  the  first  and  most  important  is  governing 
sovereignty,  and  must  exercise  those  rights  by  itself  or  by  others 
(to  whom  it  entrusts  them  for  exercise)  according  to  the 
exigencies  of  the  general  welfare.  Cardinal  Bellarmine  found 
no  difficulty  in  maintaining  both  that  governing  sovereignty 
was  first  in  the  people  and  yet  necessarily  to  be  transferred  to 
definite  rulers  under  some  legitimate  form  of  government.®' 
Sovereignty  is  held  by  no  ruler  except  in  trust  for  the  general 

*"  Billot,  De  Ecclesia,  torn.  Ill,  quest,  12,  p.  21. 

"'  Bellarmine,  De  Laicis,  Lib.  Ill,  cap.  6,  not.  3 ;  quoted  above  in  Note  42. 


SOVEREIGNTY  AND  CONSENT  97 

welfare,  in  trust  for  the  accomplishment  of  the  natural  pur- 
pose of  civil  society;  and  certainly  unless  that  trust  were  com- 
mitted to  the  ruler  by  the  community,  the  community  itself 
would  not  have  had  orig^inal  control  over  its  own  destiny,  which 
the  natural  law  not  only  supposes  it  to  have  had  as  a  right,  but 
has  imposed  as  a  duty. 

The  point  is  worth  elaborating.  To  possess  per  se  a  right  it 
is  not  necessary  that  the  possessor  be  per  se  competent  to  exer- 
cise it  by  himself,  but  only  that  he  be  per  se  competent  to 
exercise  it  either  by  himself  or  by  others  to  whom  he  may  entrust 
it  for  exercise.  Thus  the  right  to  educate  their  children  would 
still  belong  to  the  parents,  even  if  parents  were  not  per  se  fitted 
to  exercise  it  by  themselves,  but  were  necessitated  to  seek  compe- 
tent substitutes,  to  whom  they  entrusted  the  right  for  execution. 
And  the  reason  is  that  parents  could  not  divest  themselves  of 
the  duty  and  responsibility,  even  in  the  supposition  that  the 
duty  was  jJcr  se  and  of  necessity  to  be  fulfilled  by  others  of  their 
appointment.  In  like  manner  the  community  cannot  escape  the 
responsibility  or  divest  itself  of  the  duty  of  accomplishing  the 
purpose  for  which  governing  sovereignty  is  given. 

Just  as  the  physical  power  of  understanding  belongs  to  the 
soul,  though  it  cannot  exercise  it  without  an  intellectual  faculty, 
which  derives  its  power  from  the  soul ;  so  too  the  moral  power 
of  tilling  the  soil  of  an  immense  estate,  which  belongs  to  an  indi- 
vidual owner,  is  his,  even  though  he  cannot  exercise  it  b}^  him- 
self, but  must  needs  invoke  others  to  exercise  it  for  his  benefit. 
Even  the  civil  law  can  grant  a  transitory  right  to  an  individual 
per  se  incompetent  to  exercise  it,  with  the  added  obligation  of 
transferring  it  to  others  at  his  choice,  that  they  may  exercise 
it  for  his  benefit  and  for  its  civil  purpose. 

In  the  contrary  position  taken  against  our  general  contention 
of  original  sovereignty  in  the  people,  it  would  follow  that 
governing  sovereignty  did  not  actually  exist  in  civil  society 
prior  (even  by  nature)  to  the  determination  of  a  specific  form 
of  government  and  the  nomination  of  actual  rulers,  a  proposition 
more  easily  assumed  than  proved.  For  just  as  a  physical  person 
immediately  upon  its  coming  into  juridical  existence  has  domin- 
ion over  itself  and  its  members,  and  has  not  to  wait  for  such  jurid- 


98  STATE  AND  CHURCH 

ical  dominion  until  the  development  of  the  faculties  requisite  for 
its  exercise ;  so  too  a  moral  person  immediately  upon  its  juridical 
constitution  has  juridical  dominion  over  itself  and  its  members 
(and  governing  sovereignty  in  civil  society  is  no  more  than  this) 
even  before  the  development  of  the  organization  requisite  for  its 
exercise.  Nor  can  the  force  of  this  be  evaded  in  the  case  of  civil 
society  by  contending  that  the  community,  once  juridically 
a  civil  unit,  has  the  right  only  of  acquiring  the  necessary  gov- 
erning dominion  by  determining  a  specific  form  of  government 
and  nominating  definite  rulers.  For  civil  society,  if  at  all  a 
natural  juridical  person  existing  for  the  common  welfare,  must 
instantly  have  the  right  of  exacting  detailed  co-operation  from 
its  members  towards  accomplishing  the  common  good;  and  when 
all  is  said  and  done,  such  right  and  power  in  a  civil  community 
is  essentially  governing  sovereignty. 

To  restate  by  way  of  conclusion  the  Scholastic  doctrine  which 
we  have  above  set  forth :  The  title  for  the  juridical  existence  of 
an  actual  State  is  the  consent  of  the  people  who  constitute  it. 
Immediately  consequent  upon  this  follows  by  Divine  right  of  the 
natural  law  sovereignty  in  the  people,  now  a  juridical  unit,  a 
body  politic,  a  moral  person.  Logically  and  juridically  subse- 
quent to  this  comes  constitutional  organization  of  a  form  of  gov- 
ernment and  a  determination  of  definite  rulers,  who  constitute 
the  government,  the  juridical  and  derivative  title  to  whose  sov- 
ereignty is  the  consent  of  the  body  politic,  the  people.  In  this 
sense  lies  the  truth  of  the  principle  that  "governments  derive 
their  just  powers  from  the  consent  of  the  governed.'"* 

•*  American  Declaration  of  Independence. 

Editoe's  Note — The  subject  of  this  chapter  has  received  more  discussion 
of  a  fundamental  character  during  the  last  five  years  than  in  the  preceding 
fifty.  See  Dr.  Ryan's  pamphlet,  CatJwHc  Doctrine  on  the  Right  of  Self 
Government  (The  Paulist  Press,  New  York),  and  the  articles  by  Professor 
O'Rahilly,  Dr.  Fitzpatrick  and  Father  Masterson,  S.J.,  1918-1922,  in 
Studies  (Dublin)  and  in  the  Irish  Theological  Quarterly  (Maynooth). 


5.  THE  HISTORY  AND  DEVELOPMENT  OF  THE  DEM- 
OCRATIC THEORY  OF  GOVERNMENT  IN  CHRISTIAN 
TRADITION.! 

By  Rev.  Moorhouse  F.  X.  Millar,  S.J. 

John  Quincy  Adams  in  The  Juhilee  of  the  Constitution,  a 
Discourse,  delivered  in  New  York,  1839,  has  a  statement  of  which 
more  notice  might  have  been  profitably  taken.  He  said:  ''The 
Declaration  of  Independence  and  the  Constitution  of  the 
United  States,  are  parts  of  one  consistent  whole  founded  upon 
one  and  the  same  theory  of  government,  then  new,  not  as  a 
theory,  for  it  had  been  working  itself  into  the  mind  of  man  for 
many  ages,  and  been  especially  expounded  in  the  writings  of 

'The  important  words  in  this  title  are  "Development"  and  "Tra- 
dition." In  the  present  unsettled  state  of  the  world,  we  are  too  prone  to 
forget  the  wisdom  contained  in  Burke's  words  when  he  said:  "The  idea 
of  inheritance  furnishes  a  sure  principle  of  conservation  and  a  sure  prin- 
ciple of  transmission,  without  at  all  excluding  a  principle  of  improvement. 
It  leaves  acquisition  free;  but  it  secures  what  it  acquires."  (Reflections  on 
the  French  Revolution.)  But  the  principle  of  improvement  presupposes  a 
norm  for  discerning  what  in  the  past  was  true  and  sound,  that  there  might 
be  some  assurance  of  the  worth  of  the  inheritance.  Such  a  norm,  was 
furnished  by  Vincent  of  Lerins  in  the  Sth  century,  in  his  famous  Com- 
monitorium:  "Is  there  to  be  no  progress  of  religion  within  the  Church  of 
Christ?  Certainly  there  can  be,  and  great  progress  at  that.  Who  is  so 
envious  of  man's  welfare,  or  so  odious  to  God,  that  he  would  attempt  to 
check  such  progress?  But  let  it  be  such  as  to  be  truly  an  advance  in 
matters  of  faith,  not  a  change  thereof.  For  it  is  in  the  nature  of  progress 
that  in  its  development  a  thing  remains  identical  with  itself,  whereas 
change  implies  that  it  is  made  over  into  something  else.  Let  faith  grow 
therefore  as  much  and  as  vigorously  as  possible.  Let  there  be  advancement 
in  understanding,  knowledge  and  wisdom,  in  each  and  all,  in  the  single 
individual  as  well  as  in  the  Church  as  a  body.  But  let  it  be  true  in  kind; 
that  is,  the  same  in  dogma,  the  same  in  meaning,  and  with  a  like  mind." 
Vincent,  it  is  true,  wrote  this  of  faith  applied  to  the  facts  of  revelation; 
the  same  is  true  vmtatis  mutandis  of  reason  applied  to  the  facts  of  the 
natural  order. 

99 


100  STATE  AND  CHURCH 

Locke,  but  had  never  before  been  adopted  by  a  great  nation  in 
practice. 

"There  are  yet  even  at  this  day,  many  speculative  objections 
to  this  theory.  Even  in  oui*  own  country  there  are  still  philoso- 
phers who  deny  the  principles  asserted  in  the  Declaration,  as 
self-evident  truths — who  deny  the  natural  equality  and  inalien- 
a.ble  rights  of  man' — who  deny  that  the  people  are  the  only  legiti- 
mate source  of  power — who  deny  that  all  just  powers  of  govern- 
ment are  derived  from  the  consent  of  the  governed.  Neither 
your  time,  nor  perhaps  the  cheerful  nature  of  this  occasion, 
permit  me  here  to  enter  upon  the  examination  of  this  anti-rev- 
olutionary theory,  which  arrays  state  sovereignty  against  the 
constituent  sovereignty  of  the  people  and  distorts  the  Consti- 
tution of  the  United  States  into  a  league  of  friendship  between 
confederate  corporations.  I  speak  to  matters  of  fact.  There 
is  the  Declaration  of  Independence  and  there  is  the  Constitu- 
tion of  the  United  States^let  them  speak  for  themselves.  The 
grossly  immoral  and  dishonest  doctrine  of  despotic  state  sov- 
ereignty, the  exclusive  judge  of  its  own  obligations,  and  respon- 
sible to  no  power  on  earth  or  in  heaven,  for  the  violation  of 
them,  is  not  there." 

The  age-old  theory  here  referred  to  was  nothing  more  nor  less 
than  that  of  the  Whigs  and  of  the  Medieval  thinkers  and  school- 
men, and  what  distinguished  it  particularly  from  every  other 
contemporaneous  theory  was,  as  J.  Q.  Adams  here  points  out, 
its  distinctive  doctrine  on  the  nature  and  source  of  sovereignty. 
Not  only  was  it  opposed  to  the  modern  post-Reformation  and 
Renaissance  conception  of  the  State  as  absolute  in  its  power; 
it  also  differed  both  in  itself  and,  as  we  shall  have  occasion  to 
see,  in  the  thought  of  all  leading  Whigs,  from  the  radical  un- 
related theories  of  Rousseau  and  of  a  good  number  of  Protestant 
dissenters.  What  is  more,  there  is  a  still  further  point  not 
usually  made  sufficiently  clear  by  those  who  have  recently  been 
insisting  on  the  historical  and  philosophical  importance  of  this 
doctrine.  It  was  not  consent  alone  but  consent  involving  reser- 
vations that  constituted  the  true  basis  of  government.  Consent 
as  a  practical  source  of  power  was  recognized  as  far  back  as 
the  time  of  Solon.     The  idea  is  far  from  foreign  to  Pagan  writers 


HISTORY  OF  DEMOCRATIC  THEORY  101 

and  appears  in  Cicero ^  and  in  Ulpian.  But  then  as  the  latter 
states:  "that  which  seeims  good  to  the  Emperor  has  the  force  of 
law;  for  the  people  by  the  lex  regia  which  was  passed  to  con- 
fer on  him  his  power  make  over  to  him  their  whole  power  and 
authority.'"  Without  fully  appreciating  the  reason  for  this, 
Lord  Acton  very  truly  noted  the  fact  that  ''the  ancients  under- 
stood the  regulation  of  power  better  than  the  regulation  of 
liberty.  They  concentrated  so  many  prerogatives  in  the  State 
as  to  leave  no  footing  from  which  a  man  could  deny  its 
jurisdiction."* 

But  as  Christianity  was  gradually  accepted  with  its  new  view 
of  human  nature,  reason  itself  educated  under  the  influence  of 
revelation  awoke  to  the  full  and  clear  perception  of  the  fact 
that  the  very  nature  of  man  demanded  that  certain  definite  and 
essential  limitations  be  set  to  the  power  of  the  State.  As 
Francis  Lieber  in  his  work  on  Civil  Liberty  and  Self-Govern- 
ment  well  says :  "  we  observe  that  the  priceless  individual  worth 
and  value  which  Christianity  gives  to  each  human  being  by 
making  him  an  individual  responsible  being  with  the  highest 
duties  and  the  highest  privileges,  together  with  advancing 
civilization  .  .  .  developed  more  and  more  the  idea  of  indi- 
vidual right®  and  the  idea  of  protecting  them."^  The  idea  of 
contract  between  government  and  governed,  which,  as  under- 
stood and  developed  during  the  Middle  Ages,  necessarily  pre- 
supposes this  more  definite  and  enlarged  view  of  man 's  essential 
nature,   appears  for  the  first   time   in   practical  forms  in  the 

^  De  Officiis,  I. 

'  Digest,  i,  4i. 

*  History  of  Freedom  and  Other  Essays,  p.  16. 

»  1859  Edition,  p.  50.  It  was  no  doubt  with  the  fifteenth  chapter  of  the 
nineteenth  book  in  the  De  Civitate  Dei  in  mind  that  Rattier  of  Verona  in 
the  8th  century  declared:  "Note  that  God  in  the  beginning  when  He 
created  man  said:  'Increase  and  multiply  and  fill  the  earth  and  subdue  it 
and  rule  over  the  fishes  of  the  sea,  and  the  fowl  of  the  air,  and  all  living 
creatures  that  move  upon  the  earth,'  that  you  might  understand  that  men 
were  placed  not  over  men  but  over  birds  and  beasts  and  fishes;  that  all 
were  by  nature  made  by  God  equal  in  nature  but  that  inequality  was  brought 
about  by  the  customs  of  men  whereby  some  are  subject  to  others  in  such  a 
manner  that  those  who  are  better  and  more  virtuous  are  under  the  dominion 
of  others."    Quoted  in  Eevue  des  Questions  Historique,  vol.  16  (1874). 


102  STATE  AND  CHURCH 

early  coronation  oath."  According  to  the  early  Visigothic  code 
known  as  the  Forum  Judicum  and  framed  lai^ely  by  the 
Spanish  ©lergy  in  the  councils  of  Toledo,  law  is  defined  as  "the 
emulator  of  divinity,  the  messenger  of  justice,  the  mistress  of 
life.  It  regulates  all  conditions  in  the  State,  all  ages  of  human 
life ;  it  is  imposed  on  women  as  well  as  on  men,  on  the  young  as 
well  as  on  the  old,  on  the  learned  as  well  as  on  the  ignorant,  on 
the  inhabitants  of  towns  as  well  as  on  those  of  the  country;  it 
comes  to  the  aid  of  no  particular  interest ;  but  it  protects  and 
defends  the  common  interests  of  all  citizens.  It  must  be  ac- 
cording to  the  nature  of  things  and  the  customs  of  the  State, 
adapted  to  the  time  and  place,  prescribing  none  but  just  and 
equitable  rules,  clear  and  public,  so  as  to  act  as  a  snare  to  no 
citizen."'^  In  this  same  code  it  is  also  laid  down  that  "The 
royal  power,  like  the  whole  people,  is  bound  to  observe  the  laws." 
Along  with  this  idea  of  eontract  there  was  the  clearer  Christian 
concept  of  the  natural  law  now  considered  as  involving  the  due 
order  founded  in  the  nature  of  things  and  their  essential  re- 
lations, to  which  the  free  will  of  man  ought  to  conform.  In 
the  words  of  St.  Augustin  "peace  between  man  and  God  is  the 
well-ordered  obedience  of  faith  to  eternal  law.  Peace  between 
man  and  man  is  well-ordered  concord.  Domestic  peace  is  the 
well-ordered  concord  between  those  of  the  family  who  rule  and 
those  who  obey.  Civil  peace  is  a  similar  concord  among  the 
citizens.  The  peace  of  the  celestial  city  is  the  perfectly  ordered 
and  harmonious  enjoyment  of  God  and  of  one  another  in  God. 
The  peace  of  all  things  is  the  tranquillity  of  order.  Order  is 
the  distribution  which  allots  things  equal  and  unequal,  each  to 
its  'Own  place.  "^  This  idea  was  fundamental  to  the  whole  sub- 
sequent history  of  Christendom  and  may  be  traced,  in  its  appli- 
cation to  civil  society,  not  only  throughout  the  Middle  Ages 
proper,  but  even  later  in  Dante's  Convivio^;  in  Sir  Thomas 
Eliot's  book  The  Governor '^^  in  the  time  of  Henry  VIII;  in 

*  Lingard,  History  of  Anglo  Saxon  Church,  vol.  II,  p.  26,  2d  edition. 
^  Guizot,  Representative  Government   (1861),  p.  217. 

'City  of  God,  XIX,  13. 

•  Fourth  Treatise,  ch.  9. 

"Edited  by  A.  E.  Eliot  (1843),  ch.  3. 


HISTORY  OF  DEMOCRATIC  THEORY  108 

Richard  Hooker's  Ecclesiastical  Polity, ^^  written  against  the 
Puritans  in  the  days  of  Elizabeth;  in  the  writings  of  Michael 
de  L 'Hospital  in  the  time  of  the  Ligue  in  France;  in 
Shakespeare's  Trmlus  and  Cressida;^"  in  Fenelon's  Direction 
pour  la  Conscience  d'un  liai;  in  Burke's  Appeal  from  the  New 
to  the  Old  Whigs,^^  and  finally  in  Washington's  First  Inaugural 
Address,  where  he  said  "I  dwell  on  this  prospect  (of  the  future) 
with  every  satisfaction,  which  an  ardent  love  for  my  country 
can  inspire ;  since  there  is  no  truth  more  thoroughly  established, 
than  that  there  exists  in  the  economy  and  course  of  nature  an 
indissoluble  union  between  virtue  and  happiness  between  duty 
and  advantage,  between  the  genuine  maxims  of  an  honest  and 
magnanimous  policy,  and  the  solid  rewards  of  public  prosperity 
and  felicity;  since  we  ought  to  be  no  less  persuaded  that  the 
propitious  smiles  of  Heaven  can  never  be  expected  on  a  nation 
that  disregards  the  eternal  rules  of  order  and  right,  which 
Heaven  itself  has  ordained,  and  since  the  preservation  of  the 
sacred  fire  of  liberty  and  the  destiny  of  the  republican  model 
of  government,  are  justly  considered  as  deeply,  perhaps  as 
finally  staked  on  the  experiment  entrusted  to  the  hands  of  the 
American  people."  But  in  early  form  it  is  found  applied  with 
primitive  simplicity  in  the  Forum  Judicum  of  the  Spanish 
Visigoths,  where  it  was  declared  ' '  God,  the  Creator  of  all  things, 
in  arranging  the  structure  of  the  human  body,  raised  the  head 
above,  and  willed  that  thence  from  should  issue  the  nerves  of 
all  the  members.  And  he  placed  in  the  head  the  torch  of  the  eyes, 
that  thence  might  be  detected  all  things  that  might  be  injurious. 
And  he  established  therein  the  power  of  the  intellect,  charging 
it  to  govern  all  the  members,  and  wisely  to  regulate  their  action. 
We  must  therefore  first  regulate  that  which  concerns  princes, 
watch  over  their  safety,  protect  their  life ;  and  then  ordain  that 
which  has  relation  to  peoples,  in  such  sort  that,  while  suitably 
guaranteeing  the  safety  of  Kings,  we  may  at  the  same  time 
better  guarantee  that  of  the  peoples. ' '  ^* 

"  Book  I,  ch.  16. 

"  Act  I,  scene  3. 

»•  Worlcs,  Oxford  University  Press  edition,  vol.  V,  p.  92. 

"  Cf .  Guizot,  loc.  cit.,  p.  219. 


104  STATE  AND  CHURCH 

This  insistence  on  the  essential  necessity  of  authority  for  the 
right  ordering  of  society  is  characteristic  of  the  Middle  Ages. 
For  the  problem  of  the  times  was  not  liberty  primarily  but  the 
very  maintenance  of  anything  approaching  well  regulated  civil 
life.  Yet  the  rightful  claims  of  the  people,  or  the  fact  that  the 
common  good  is  the  true  end  of  the  government,  is  never  allowed 
to  remain  out  of  sight.  At  a  time  when  Visigothic  Kings  were 
being  murdered  in  rapid  succession  by  their  turbulent  and  am- 
bitious nobles,  to  the  great  confusion  of  the  nation,  Isidore  of 
Seville,  while  deploring  this  fact,  could  still  say  "the  ancients 
made  no  distinction  between  Kings  and  tyrants;  but  amongst  us 
it  has  become  the  custom  to  designate  by  the  name  of  tyrants  the 
evil  Kings  who  crush  the  people  under  the  weight  of  their 
ambition  and  their  cruelty.  "^"^  St.  Paul  had  declared  that 
"there  is  no  power  but  of  God."  But  Doctors  of  the  Church 
such  as  St.  Ambrose^*^  and  St.  John  Chrysostom  had  made  it 
clear  that  this  should  not  be  understood  as  furnishing  any  ground 
for  arbitrary  rule.  Preaching  within  the  jurisdiction  of  the 
despotic  Emperors  of  Constantinople  the  latter  said  "Nor  am  I 
now  speaking  about  individual  rulers  but  about  the  thing  in 
itself.  For  that  there  should  be  rulers  and  some  rule  and  others 
be  ruled,  and  that  all  things  should  not  just  be  carried  on  in  one 
confusion,  the  people  swaying  like  waves  in  this  direction  and 
that;  this,  I  say,  is  the  work  of  God's  wisdom.  Hence  he 
(St.  Paul)  does  not  say  "for  there  is  no  ruler  but  of  God"  but 
it  is  the  thing  he  speaks  of  and  say^  "there  is  no  power  but  of 
God.  And  the  powers  that  be,  are  ordained  of  God."  Thus 
when  a  certain  wise  man  saith  "It  is  by  the  Lord  that  a  man 
is  matched  with  a  woman"  (Prov.  19.14),  he  means  this:  God 
made  marriage,  and  not  that  it  is  He  that  joineth  together  every 
man  that  cometh  to  be  with  a  woman.  "^^  Whence  it  is  clear 
that  though  authority  legitimately  held  and  used  is  to  be  recog- 
nized as  coming  from  God  the  relation  between  the  ruler  and 
ruled  is  an  established  one  founded  on  free  agreement  similar 
to  the  free  contract  in  marriage. 

"Revue  des  Questions  Historiques,  vol.  16,  p.  341   (1874). 
"Expositio  Evang.    Sec.  Luc.  lib.  IV,  29. 
"Epist.  ad  Rom..   (13.1)  homil.,  23. 


HISTORY  OF  DEMOCRATIC  THEORY  105 

Not  only  was  the  natural  law  as  thus  more  clearly  conceived, 
seen  to  eoaistitute  certain  definite  aiid  essential  limitations  to 
the  power  of  giovernment,  but  this  very  clearness,  obviating  as 
it  did  any  further  pantheistic  interpretation  such  as  that  of  the 
Stoics  and  the  Roman  Jurists,  made  it  possible  henceforth  to 
distinguish  between  what  was  due  in  consequence  of  the  nature 
and  essential  relations  of  things,  and  what  was  open  to  the  free 
determination  of  man  within  such  manifest  bounds  of  the  natural 
order.  Writing  of  the  use  among  the  ancients  of  the  terms 
natural  law  and  law  of  nations,  Viscount  Bryce,  though  unable 
himself  to  assign  the  reason  for  the  fact  which  he  notes,  very 
truly  observes  that  "the  (Roman)  jurists  use  the  two  terms 
as  practically  synonymous,  though  generally  employing  ius 
naturae  or  naturalis  ratio  when  they  wish  to  lay  stress  on  the 
motive  or  ground  of  a  rule;  iiis  gentium  when  they  are  think- 
ing of  it  in  its  practical  application."^^  This  confusion  was 
due  to  the  Stoics'  pantheistic  conception  of  reason  as  identified 
with  the  force  behind  nature  which,  for  them,  accounted  for  the 
order  of  the  universe.  Natural  law  was  thus  a  sort  of  vis  a  tergo 
or  instinct  eommon  to  man  and  beasts,  and  the  similarity  in  the 
laws  of  various  peoples  was  explained  as  no  more  than  a  mani- 
festation of  the  same  instinct.  But  being  peculiar  to  the 
nations  as  distinguished  from  animals  such  laws  as  were  found 
to  be  alike,  were  held  to  constitute  the  ius  gentium  or  law  of 
nations."     But  with   Christianity's  insistence   on  the   freedom 

"  Studies  in  History  and  Jurisprudence,  p.  585. 

"Gaius'  definition  runs,  "Quod  vero  naturalis  ratio  inter  omnes  homines 
constituit,  id  apud  omnes  populos  perteque  custoditur,  vocaturque  jus 
gentium,  quasi  quo  jure  omnes  liomines  utuntur. "     Instit.  II,  i. 

S.  H.  Butcher  in  Some  Aspects  of  Greek  Genius,  p.  79,  says:  "Not  until 
man  was  rescued  out  of  the  kingdom  of  nature  and  taken  up  into  the  com- 
monwealth of  God  and  into  personal  relations  with  the  Divine  Being,  could 
he  be  more  than  the  member  of  a  social  organism,  or  an  instrument  for 
achieving  the  ends  of  the  State.  Then  only  did  a  universal  morality 
become  possible  and  the  idea  of  personality  receive  its  full  content. ' '  Like- 
wise, Fustel  de  Coulanges,  says :  "If  we  recollect  .  .  .  the  omnipotence 
of  the  states  among  the  ancients  .  .  .  we  shall  see  that  this  new  prin- 
ciple (liberty  of  conscience)  was  the  source  whence  individual  liberty 
flowed. 

' '  The  mind  once  freed,  the  greatest  difficulty  was  overcome  and  liberty 
was  compatible  with  social  order. 

' '  Man  felt  that  he  had  other  obligations  besides  that  of  living  and  dying 


106  STATE  AND  CHURCH 

of  the  human  will  and  a'^pecially  after  the  great  Christological 
controversies  had  brought  to  light  the  true  nature  of  personality 
and  the  conseciuent  dignity  of  the  individual,  this  confusion 
could  no  longer  subsist  unchallenged.  Lactantius  and  Ambrose 
especially  had  much  to  say  regarding  the  ignorance  of  Pagan 
writers  concernmg  the  natural  law.  The  distinction  between 
the  due  order  and  an  order  established  by  human  agreement, 
is  clearly  made  by  St.  Augus'tin.^"  In  Isidore  of  Seville  more- 
over we  have  the  first  explicit  instance  of  a  definite  recognition 
of  a  real  difference  between  natural  law  and  the  law  of  nations. 
The  natural  law  is  now  no  longer  seen  as  in  instinct  but  as 
"had  by  an  instinct"  or  natural  inclination  of  reason  to  detect 
what  is  "in  accord  with  natural  equity. "^^  While  the  ius 
gentium  is  henceforth  classed  in  the  category  of  positive  human 
law :  that  is,  it  is  held  to  be  expressive  of  a  free  agreement 
among  men  made  manifest  through  customary  usage. ^^  But 
what  is  of  chief  importance  to  our  question,  national  customs, 
as  a  result  of  all  this,  take  on  a  new  significance.  Not  only 
are  they  held  to  constitute  law  in  the  narrower  sense  of  law, 
i.  e.,  law  for  the  people;  but,  as  a  product  of  popular  usage  and 
consequently  an  expression  of  the  people's  will,  they  function 
as  a  rudimentary  form  of  constitutional  law  and  are  considered 

for  the  city.  Christianity  distinguished  the  private  from  the  public 
virtues.  By  giving  less  honor  to  the  latter,  it  elevated  the  former,  it 
placed  God,  the  family,  the  human  individual  above  country,  the  neighbor 
above,  the  city."     The  Ancient  City,  pp.  526,  527,  italics  inserted. 

This  rather  contradicts  Prof.  W.  A.  Cunning's  contention  that  "Greek 
thought  on  this  problem  (of  determining  on  what  principles  the  relation  of 
authority  and  submission  can  be  explained  and  justified)  in  the  fourth  and 
third  centuries  before  Christ  included  substantially  all  the  solutions  ever 
suggested."  Political  Theories  from  Rousseau  to  Spencer,  p.  416.  Of  the 
ancient  democracy  Aristotle  himself  said:  "It  is  assumed  that  justice  is 
equality,  that  equality  consists  in  the  supremacy  of  the  will  of  the  masses, 
and  that  it  is  characteristic  of  liberty  that  every  citizen  acts  as  he  chooses. 
The  result  is  that  in  this  kind  of  democracy  each  individual  lives  as  he 
chooses  or  in  the  language  of  Euripedes  '  as  he  likes  it. '  This,  however, 
is  a  serious  mistake;  for  the  citizen  should  live  and  live  gladly  in  the  spirit 
of  the  polity,  as  such  a  life  ought  not  be  regarded  as  a  bondage  but  rather 
as  a  means  of  preservation."  Politics  VIII,  9.  And  we  know  that  even 
Aristotle  could  furnish  no  adequate  content  to  "should"  and  "ought." 

'"  City  of  God,  XIX,  c.  24. 

"  Etymolog.,  V,  c.  4. 

« Ibid.,  c.  6. 


HISTORY  OF  DEMOCRATIC  THEORY  107 

as  limiting  and  defining  the  terms  of  the  agreement  between 
the  ruler  and  his  subjects.  As  we  saw  already  in  the  words  of 
the  Forum  Judicum,  law  "must  be  according  to  the  nature 
of  things  and  the  customs  of  the  State."  In  other  words  the 
King  may  make  laws,  but  none  that  conflict  with  established 
custom,  since,  as  Isidore  of  Seville  said :  ' '  Custom  is  a  kind  of 
right  established  by  practice"  and,  ''law  is  something  estab- 
lished by  the  people."" 

Besides  all  this  there  was  the  ulterior  and  more  fundamental 
question  of  justice.  A.  F.  Pollard  in  a  recent  work,  The  Evolu- 
tion of  Parliament,  speaking  of  the  motive  for  frequent 
parliaments  in  the  Middle  Ages,  makes  the  interesting  state- 
ment that  "if  they  (English  subjects)  desired  parliaments  at 
all,  it  was  for  the  justice  therein  dispensed,  and  not  for  the 
taxation  therein  imposed."^*  And  another  late  writer,  dealing 
with  the  question  of  government,  says  of  the  Scholastic  doctrine 
very  truly:  "In  the  word  justice  we  get  the  key  to  the  whole 
Scholastic  system.  .  .  .  The  essential  conception  is  that  of 
justice;  and  it  is  in  order  to  prove  that  justice  must  preside 
over  all  political  relations  that  the  schoolmen  appeal  to  a  pact 
(usually  implicit  only)    between  the  rulers  and  the  ruled.  "^^ 

But  before  such  practical  and  theoretic  developments  as 
Parliament  and  the  Scholastic  teaching  on  government  could 
take  place,  that  revolution  in  the  very  notion  of  justice  had 
first  to  be  effected  which  was  brought  about  in  earlier  times 
by  the  spread  of  Christianity.  Lactantius  in  the  fourth  century 
had  pointed  out  what  was  radically  defective  in  the  ancient 
Pagan  conception  when  he  said :  "  It  is  very  easy  to  shake 
justice,  having  no  roots,  inasmuch  as  there  was  then  none  on 
earth,  that  its  nature  or  qualities  might  be  perceived  by  philoso- 
phers. And  I  could  wish  that  men  so  many  and  of  such  a 
character  had  possessed  knowledge  also  in  proportion  to  their 
eloquence  and  spirit,  for  completing  the  defence  of  this  great 
virtue,  which  has  its  origin  in  religion,  its  principles  in  equity. 

"  Corpus  Juris  Canonici  Dist.,  I,  c.  2  and  5.     Dist.,  II,  c.  i. 
**Pp.  42,  43. 

"  Claude  E.  H.  Williamson,  Democracy  and  Eevolution.  Irish  Ecclesi- 
astical Record,  Jan.,  1921,  p.  63. 


108  STATE  AND  CHURCH 

.  If,  therefore,  it  is  piety  to  know  God,  and  the  sum  of 
this  knowledge  is  to  worship  Him,  it  is  plain  that  he  is  ignorant 
of  justice  who  does  not  possess  the  knowledge  of  God.  For 
how  can  he  know  justice,  who  is  ignorant  of  the  source  from 
which  it  arises?  .  .  .  The  other  part  of  justice  ...  is 
equity,  and  it  is  plain  that  I  am  not  speaking  of  the  equity  of 
judging  well,  though  this  also  is  praiseworthy  in  a  just  man, 
but  of  making  himseilf  equal  to  others  which  Cicero  calls  equa- 
bility. For  God,  who  produces!  and  gives  breath  to  men,  willed 
that  all  should  be  equal,  that  is,  equally  matched.  ...  In 
His  sight  no  one  is  a  slave,  no  one  a  master,  for  if  all  have 
the  same  Father,  by  an  equal  right  we  are  all  children.  .  .  . 
Therefore  neither  the  Romans  nor  the  Greeks  could  possess 
justice,  because  they  had  men  differing  from  one  another  by 
many  degrees,  from  the  poor  to  the  rich,  from  the  humble  to 
the  powerful,  in  short,  from  private  persons  to  the  highest 
authorities  of  Kings.  For  where  all  are  not  equally  matched, 
there  is  no  equity,  and  inequality  of  itself  excludes  justice,  the 
whole  force  of  which  consists  in  this,  that  it  makes  those  equal 
who  have  by  an  equal  lot  arrived  at  the  condition  of  this  life."^^ 
In  this  Lactantius  is  not  professing  himself  a  Leveller  as  is 
clear  from  what  follows  in  the  context.  His  argument  is  that 
the  ancients  admitted  no  such  thing  as  what  we  now  know  as 
inalienable  rights  to  which  every  individual  has  an  absolute 
claim  by  the  mere  fact  of  his  being  a  man.  Both  Christian  and 
Pagan  could  define  justice  as  that  habit  of  mind  which  renders 
his  own  to  every  man.  But  they  would  differ  in  their  compre- 
hension of  the  term  "his  own."  In  the  Pagan  conception,  not 
only  were  all  rights  considered  as  granted  and  defined  by  the 
State,  but  that  which  granted  eould  also  withdraw  or  modify 
such  rights  at  will;  that  is,  the  individual  who  happened  to  be 
a  citizen,  might  rest  assured  of  certain  determined  barriers 
against  the  arbitrary  dealings  of  his  neighbor,  but  he  had  no 
rights  against  the  State;  which  in  its  own  action  and  in  its 
definition  of  rights  remained  unchecked  by  any  consideration 
of  natural  rights.  The  Christian,  on  the  other  hand,  knowing 
that  man  has  duties  transcending  those  he  owes  to  society  and 
"Div.  Instit.,  V,  15.     Roberts  and  Donaldson's  trans. 


HISTORY  OF  DEMOCRATIC  THEORY  109 

the  State,  realized  that  he  has  rights,  both  in  regard  to  the 
question  of  their  fulfilment,  and  in  regard  to  the  necessary 
means,  which  the  State  is  bound  in  law  and  equity  to  respect 
and  protect. 

Corresiponding  to  this  difference  between  the  Christian  and 
the  Pagan  idea  of  justice  was  the  correlative  difference  between 
the  Medieval  and  ancient  cionception  of  liberty.  Neither  the 
Medieval  or  Pagan  mind  could  have  made  anything  out  of  the 
modern  moon-grasping  notions  that  originated  in  the  Reforma- 
tion. For  both  considered  liberty  to  consist  in  the  security  of 
rights  definitely  known  and  recognized.  But  whereas  the  Pagan 
only  thought  of  insisting  on  such  liberty  as  was  conceded  him, 
the  man  of  the  Middle  Ages  judged  the  action  of  government 
and  all  its  regulations  in  the  light  of  such  limitations  as  the 
natural  law  imposed.  Hence  the  Medieval  distinction  between 
liberty  and  liberties,-^  the  one  due  in  consequence  of  natural 
rights,  the  other  the  result  of  grants,  agreements  and  judicial 
decisions  in  the  past.  Equity  provided  for  both,  for  as  the 
unknown  author  of  the  Fragmentum  Pragense  expressed  it, 
"Equity  is  that  fair  arrangement  of  all  things  which  demands 
equal  rights  under  the  same  conditions.  Thus  God  is  called 
equity  for  the  reason  that  he  so  wills ;  for  equity  is  nothing  else 
but  God.  This  temper  when  considered  as  permanently  residing 
in  man's  will  is  called  justice,  and  this  will,  when  made  manda- 
tory, either  by  written  precept  or  custom,  is  called  law."^^ 
Moreover  aJs  the  relation  between  ruler  and  ruled  was  held  to 
be  based  on  a  contract,  the  terms  of  which  were  limited  and 
defined  by  such  customs  and  laws  as  owed  their  origin  to  past 
grants,  decisions  or  agreements,  it  followed  that  the  King  could 
no  more  abrogate  any  of  the  liberties  of  his  people  than  could 
an  individual  subject,  unless  it  were  by  mutual  consent. 

Such  then  was  the  origin  of  the  theory  of  government  of 
which  J.  Q.  Adams  said,  "had  been  working  itself  into  the  mind 

"  The  mediaeval  love  of  liberty  was  well  expressed  by  John  of  Salisbury : 
' '  Duae  causae  sunt,  quas  homines  affectuosissime  tuentur  et  quas  propo- 
nunt  animabus  suis  altera  libertatis,  altera  fidei  et  religionis. "  Ep.  192, 
ad.  Ep.  Exon. 

"  For  the  original  Latin  see  A.  J.  Carlyle  History  of  Mediaeval  Political 
Theory,  vol.  II,  p.  10. 


110  STATE  AND  CHURCH 

of  man  for  many  ages."  In  the  development  that  ensued,  the 
work  is  again  that  of  the  Church.  In  Maitland's  words:  "It  is 
by  'popish  clergymen'  that  our  English  common-law  is  con- 
verted from  a  rude  mass  of  customs  into  an  articulate  system, 
and  when  the  'popish  clergymen'  yielding  at  length  to  the 
Pope's  commands,  no  longer  sit  as  the  principal  justices  of  the 
King's  court,  the  creative  age  of  our  Medieval  law  is  over."^" 
And  again:  "English  law,  more  especially  English  law  of  civil 
procedure,  was  rationalized  under  the  influence  of  the  Canon 
law."^"  In  the  twelfth  century  Ivo  of  Chartres  in  his  hand- 
book of  Canon  law  repeats  the  definition  of  Isidore  of  Seville 
that  "Law  should  be  honesta,^^  just,  possible,  according  to 
nature,  conformed  to  the  customs  of  the  country,  suitable  to 
place  and  time,  necessary,  useful,  clear,  also,  so  as  not  to  contain 
anything  which  by  its  obscurity  might  lead  to  wariness,  it 
should  be  devised  for  the  common  g-'ood  of  all  the  citizens  and 
not  for  the  private  interests  only  of  some  individual.  "^^  Treat- 
ing of  the  question  as  to  whether  custom  can  obtain  the  force 
of  law,  St.  Thomas  said  in  the  thirteenth  century:  "The  people 
among  whom  a  custom  is  introduced  may  be  of  two  conditions. 
If  they  are  free  and  able  to  make  their  own  laws,  the  consent 
of  the  whole  people  expressed  by  a  custom  counts  far  more 
in  favor  of  a  particular  observance  than  does  the  authority  of 
the  sovereign  who  has  not  the  power  to  frame  laws,  except  as 
representing  the  people.  Wherefore  although  each  individual 
cannot  make  laws,  yet  the  whole  people  can.  If,  however,  tlie 
people  have  not  the  free  power  to  make  their  own  laws  or  to 
abolish  a  law  made  by  a  higher  authority ;  nevertheless  with  such 
a  people  a  prevailing  custom  obtains  the  force  of  law,  in  so  far  as 
it  is  tolerated  by  those  to  whom  it  belongs  to  make  laws  for 
the  people;  because  by  the  very  fact  that  they  tolerated  it, 
they  seem  to  approve  of  that  which  is  introduced  by  custom.  "^^ 
Concerning  the  power  of  Kings  and  the  various  ways  of  settling 

"  Pollock  and  Maitland,  History  of  English  Law,  vol.  I,  133. 
'"Ibid.,  134. 

"  i.  e.,  Morally  perfective  of  man's  nature. 

"Corpus  Juris  Canonici   Dist.,   IV,  c.   2;    also  Julien   Havet  Melanges, 
1895,  pp.  673,  674. 
"  Q.  97,  a.  3,  ad  3. 


HISTORY  OF  DEMOCRATIC  THEORY  111 

with  a  tyrannous  ruler,  St.  Thomas  again  adds  definiteness  to 
the  older  tradition.  In  his  De  Begimine  Principum  he  says: 
"If  any  people  has  the  right  to  provide  a  ruler  for  itself,  it 
will  not  be  acting  unjustly  if  it  strip  him  of  his  authority  or 
place  a  eheck  on  his  power,  when  he  abuses  it  tyrannically.  Nor 
should  such  a  people  be  thought  unfaithful  in  deposing  the 
tyrant  even  should  it  have  previously  subjected  itself  to  him 
forever.  For  inasmuch  as  he  carries  on  the  government  of  the 
people  without  the  fidelity  which  his  office  requires,  he  himself 
deserves  that  the  pact  should  not  be  kept  by  his  subjects."^* 
By  this  time,  however,  an  opposite  theory  had  started  up. 
In  the  struggle  between  Gregory  VII  and  Henry  IV  of  Germany, 
those  who  sided  with  the  King  sought  what  semblance  of  a 
justification  they  could  find  for  their  cause  in  false  and  lying 
reports  about  the  Pope.  Later  when  Frederick  Barbarossa 
was  asked  from  whom  he  held  his  imperial  dignity  he  answered : 
"From  God  alone  by  the  choice  of  the  princes."  This  was  a 
formal  denial  of  its  true  historical  origin.  But  to  support  the 
claim,  he  and  his  successors  began  to  appeal  to  principles  in 
Roman  law  diametrically  opposed  to  those  upon  which  Medieval 
civilization  was  founded.  This  appeal  to  Pagan  principles  and 
the  strife  of  argument  and  of  wars  which  it  engendered  in  the 
great  contest  between  the  Papacy  and  the  Empire,  soon  began 
to  react  on  the  consciences  of  men.  Already  in  Dante's 
MonarcKia  we  find  all  thought  of  liberty  sacrificed  in  the  attempt 
to  solve  the  problem  of  order.  As  a  necessary  consequence  it 
becomes  less  and  less  a  matter  of  striving  for  such  an  order  as 
reason  might  demand.  Craft  and  will-force,  from  a  means  in 
actual  use,  gradually  came  to  be  defended  as  the  only  means  in 
practical  theory.  The  Vision  and  Creed  of  Piers  Ploughman, 
written  in  England  sometime  around  the  end  of  the  fourteenth 
century,  might  properly  be  called  a  lament  for  the  disrupted 
state  of  men's  consciences  in  consequence  of  the  corruption 
of  justice  by  those  in  power.  In  the  next  century  Philippe  de 
Commines  gives,  in  his  Memoirs,  a  description  of  the  tyranny 
that  prevailed  in  France  in  his  day,  and  sees  no  hope  but  in 


"Lib  I.  c.  VI. 


112  STATE  AND  CHURCH 

the  thought,  "that  there  is  a  necessity  that  every  prince  or 
great  lord  should  have  an  adversary  to  restrain  and  keep  him 
in  humility  and  fear,  or  else  there  would  be  no  living  under 
them,  nor  near  them."^'^  Finally  Machiavelli,  with  his  idea 
of  the  State  as  an  end  in  itself,  sacrifices  all  to  mere  etficiency, 
so  that  Jean  Bodin's  "modern"  working  definition  of  sov- 
ereignty, as  the  "supreme  power  over  citizens  and  subjects, 
unrestrained  by  laws, "^^  was  alone  needed  for  the  complete 
revival  of  the  old  Pagan  idea  of  government. 

But  this  was  not  to  remain  unchallenged.  The  sound  Christian 
tradition  persisted  not  only  in  the  schools  but  even  in  the  minds 
of  the  people.  Not  so  very  long  before  Richard  II 's  accession 
to  the  throne,  the  author  of  Piers  Ploughman,  whose  orthodoxy 
has  been  unjustly  questioned  by  those  ignorant  of  Catholic 
belief,  beholding  the  royal  cortege  supposedly  in  vision  says: 

Thanne  kam  a  King 
Knighthood  hym  ladde. 
Might  of  the  communes 
Made  hym  to  regne, 

Philippe  de  Commines  in  the  Memoirs  already  referred  to  de- 
clared: "there  is  no  prince  who  can  raise  money  any  other  way 
(than  by  free  consent  of  his  people)  unless  it  be  by  tyranny,  and 
contrary  to  the  laws  of  the  Church ;  but  many  are  so  stupid 
as  not  to  know  what  rights  they  have  in  this  respect.  "^^  In 
the  lifetime  of  de  Commines  and  at  the  States  General  held  at 
Tours  in  1484,  the  year  after  Luther's  birth,  Philippe  Pot, 
Seigneur  de  la  Roche,  deputy  for  the  nobility  of  Burgundy, 
stood  out  boldly  against  Guillaume  de  Rochfort,  chancellor  of 
France,  when  the  latter  insisted  that  obedience  was  the  first 
duty  of  the  French  subject.  "As  history  relates,"  Philippe  Pot 
said,  "and  as  I  learned  from  my  forefathers,  in  the  beginning 
the  sovereign  people  iuvstituted  Kings  by  election  and  it  gave 
special  preference  to  those  men  who  surpassed  others  in  virtue 

"  De  Regimine  Principum,  I,  6. 
"Bohn's  edition  of  Scoble 's  trans.,  vol.  I.,  p.  399. 

"Quoted  by  Dunning:  "Political  Theories  from  Luther  to  Monte- 
squieu," p.  96;  3  loc.  cit.,  p.  388. 


HISTORY  OF  DEMOCRATIC  THEORY  113 

and  ability.  ...  I  would  have  you  admit  that  the  State 
is  something  that  pertains  to  the  people  who  have  entrusted 
it  to  Kings  and  that  those  who  have  held  it  by  force  or  other- 
wise, without  any  consent  of  the  people,  are  deemed  tyrants 
and  usurpers  of  that  which  belongs  to  others. "^^  And  again: 
''When  the  King  is  incapable  of  governing,  the  right  to  deter- 
mine the  course  of  affairs  evidently  should  return,  not  to  some 
prince  nor  to  a  council  of  princes,  but  to  the  people,  the  donors 
of  this  power.  The  people  have  not  the  right  to  rule,  but  they 
have  the  right  to  administer  the  affairs  of  the  nation  through 
those  whom  they  have  freely  elected.  I  mean  by  the  people 
not  only  the  common  people  and  serfs,  but  the  men  of  every 
class,  so  that  under  the  name  of  States  General  I  include  even 
the  princes  and  exclude  none  who  reside  within  the  realm.  "^'^ 
With  the  Scholastic  revival  of  the  sixteenth  and  seventeenth 
century  this  Medieval  Christian  tradition  was  supplied  anew 
with  the  theoretic  justification  which  the  outstanding  problems 
created  by  the  Reformation  and  the  Renaissance  demanded.  In 
the  cause  of  liberty  the  two  great  protagonists  were  Bellarmine 
and  Suarez,  the  one  an  Italian,  the  other  a  Spaniard,  but  both 
Jesuits  and  both  ably  supported  by  a  large  number  among 
their  brethren  who  followed  their  lead.  What  Lecky  has  stated 
in  regard  to  Jesuits  in  those  days  may  be  taken  as  a  somewhat 
enlightening  admission,  if  proper  allowance  be  made  for  some 
exaggeration  and  for  a  number  of  inaccuracies  that  still  pass 
as  common  currency.  He  says:  ''The  marvellous  flexibility 
of  intellect  and  the  profound  knowledge  of  the  world  that  then, 
at  least,  characterized  their  order,  soon  convinced  them  that 
the  exigencies  of  the  conflict  were  not  to  be  met  by  following 
the  old  precedents  of  the  Fathers,  and  that  it  was  necessary  to 
restrict  in  every  way  the  overgrown  power  of  the  sovereigns. 
They  saw,  what  no  others  in  the  Catholic  Church  seem  to  have 
perceived,  that  a  great  future  was  in  store  for  the  people,  and 
they  labored  with  a  zeal  that  will  secure  them  everlasting  honor, 

"  Quoted  by  Chas.  Joiirdain  La  Eoyaute  Frangaise  et  le  droit  populaire. 
Eevue  des  Questions  Historiqucs,  vol.  16  (1874),  p.  379. 

''  Quoted  from  the  same  speech  by  G.  Picot,  Histoire  des  fitats  Generaux, 
vol.  II,  2d  ed.,  pp.  6,  7. 


114  STATE  AND  CHURCH 

to  hasten  and  direct  the  emancipation.  By  a  system  of  the 
boldest  casuistry,  by  a  fearless  use  of  their  private  judgment 
in  all  matters  which  the  Church  had  not  strictly  defined,  and 
above  all  by  a  skilful  employment  and  expansion  of  some  of 
the  maxims  of  the  schoolmen,  they  succeeded  in  disentangling 
themselves  from  the  traditions  of  the  past,  and  in  giving  an 
impulse  to  liberalism  wherever  their  influence  extended."*" 

The  problem  with  which  the  Jesuits  had  to  contend  differed, 
of  course,  entirely  from  the  one  with  which  the  Fathers  had 
had  to  deal.  We  have  seen,  moreover,  what  the  origin  of  that 
non-Medieval  false  tradition  was  from  which  they  had  to  dis- 
entangle themselves.  Beginning  with  the  revival  of  Roman  law 
in  its  old-time  Pagan  unassimilated  form,  this  had  developed 
into  Machiavellian  state  absolutism.  But  in  the  process,  espe- 
cially in  France,  it  had  found  itself  obliged  to  assume  sheep's 
clothing.  For  there  was  always  the  Pope  to  be  reckoned  with. 
After  Philip  the  Fair's  attack  on  Boniface  VIII,  William  of 
Occam  and  Marsiglio  of  Padua  began  to  misapply  the  Medieval 
political  theory  to  the  constitution  of  the  Church  with  the  pur- 
pose of  undermining  Papal  influence."  And  from  their  writings 
it  was  that,  amidst  the  confusion  created  by  the  Schism  of  the 
West,  the  theory  of  national  churches  evolved  which  should 
leave  the  Pope  little  beyond  the  right  to  deliver  pious  exhorta- 
tions. In  its  first  applied  form  this  theory  was  known  as  the 
GaHican  Liberties,  and,  in  the  minds  of  those  who  advocated  it 
under  this  misnomer,  it  resolved  itself  into  a  blind  desire  to 
curtail  the  direct  influence  of  the  Pope  for  the  sake  of  exalting 
the  King,  the  symbol  of  national  unity.  This  might  be  freedom 
of  a  sort  for  rulers,  it  certainly  contributed  nothing  to  the 
rightful  liberty  of  the  people.  But  in  France  the  theory  was 
not  worked  out  to  its  full  logical  conclusion  till  the  decree 
was  passed,  during  the  French  Revolution,  for  the  civil  constitu- 
tion of  the  clergy. 

The  first  to  bring  the  whole  question  to  definite  practical 

*°  History  of  the  Rise  and  Influence  of  Rationalism  in  Europe  (1890), 
vol.  II,  p.  147. 

"  See  Maitland  's  Gierke,  Political  Theories  of  the  Middle  Ages,  pp.  191, 
192. 


HISTORY  OF  DEMOCRATIC  THEORY  115 

issue  was  James  I   of  England"   in  his  pedantic   attempt  to 
defend   the  deceptive  oath   of  allegiance  which  he   wished   to 
impose  on  his  Catholic  subjects.    In  the  controversy  that  ensued 
between  himself  and  Bellarmine,  the  latter  confined  his  attack 
to  the  real  point  in  the  argument  namely,  the  exact  interpreta- 
tion of  the  oath  and  its  bearing  on  the  faith  of  Catholics.     But 
James  I,  who  insisted  on  filling  the  world  with  the  splendor  of 
his   own   learning,    sent   forth   his   Premonition    To  All   Most 
Mightie  Monarches,  Kings,  Free  Princes,  And  States  of  Christ- 
endome,  in  which  he  reviews  Bellarmine 's  earlier  works  and 
draws  up  a  list  of  what  he  would  have  to  be  objectionable  or 
dangerous  errors.     The  futility  of  this  becomes  apparent  when 
it  is  recalled  that  Bellarmine  was  already  the  most  widely  read 
controversialist  of  the  day,  and  that  chairs  of  controversy  known 
as  Anti-Bellarmine  Colleges  had  been  established  in  the  time  of 
Elizabeth   at   both    Oxford   and    Cambridge   with   the   express 
purpose  of  providing  answers  to  these  works.'*^     But  the  line 
of  tactics  thus  adopted  by  James  had  the  merit  of  bringing 
into  prominence  one  portion  of  Bellarmine 's  De  Controversiis 
which,  except  for  points  gleaned  from  it  by  Hooker,  in  his  effort 
to  bring  the  Puritans  back  to  reason,  had,  up  to  this,  received 
little  notiee  in  England.     This  was  his  treatise  De  Laicis  sive 
Saecularihus  of  which  he  himself  speaks  as  being  exiguus  lihellus 
or  a  little  booklet  and  which,  it  should  he  very  carefully  noted, 
was  written  with  the  express  intention  of  confuting  the  anti- 
nomian  and  anti^social  tenets  of  Wycliffe,   Huss,  Luther  and 
Calvin.    In  establishing  the  legitimacy  of  government,  however, 
he  argued  from  the  old  traditional  Medieval  ground  that  rulers 
derive  their  authority  from  the  consent  of  the  people.     This 
was  anathema  to  James  and  his  Anglican  bishops.    Not  content 
with  an  hone^  effort  to  deal  squarely  with  the  question,  he 
and  they  began  the  policy  of  representing  Jesuits   as  saying 
things  they  never  uttered.     As  James  stated  the  doctrine  he 
wished  attributed  to  Bellarmine,  it  read:     "And  as  for  the 

"James  made  an  explicit  appeal  to  the  so-called  Galilean  Liberties;  see 
"The  Political  Works  of  James  I,"  reprinted  by  Chas.  H.  Mcllwain,  p.  119. 
"Frizon:    Vie  du  Carindal  Bellarmin,  vol.  I,  p.  130. 


116  STATE  AND  CHURCH 

setting  up   of   the  People   above  their  own   natural   King,   he 
bringeth  in   that   principle   of   Sedition,   that  he  may  thereby 
prove,  that  Kings  have  not  their  power  immediately  of  God, 
as  the  Pope  hath  his:    For  every  King  (saith  he)  is  made  and 
chosen  by  his  people;   nay,   they  doe  but  so  transferre  their 
power  in  the  King's  person,  as  they  doe,  notwithstanding,  re- 
taine  their  habitual   power   in   their  own   hands,   which   upon 
certaine  occasions  they  may  actually  take  to  themselves  againe. 
This,   I   am  sure,   is  an   exeellent  ground   in  Divinite  for  all 
Rebels  and  rebellious  people,  who  are  hereby  allowed  to  rebell 
against  their  Princes ;  and  assume  libertie  unto  themselves,  when 
in  their  discretions  they  will  thinke  it  convenient.""*     To  this 
Bellarmine  rejoined,  in  his  Apology,  with  the  statement  that, 
had  James  merely  quoted  his  exact  words  there  would  be  no 
need  of  answering  him;  that,  in  the  first  place,  the  words  "every 
King  is  made  and  ehosen  by  his  people"  were  neither  his  own 
nor  those  of  anyone  else  as  far  as  he  knew,  and  were  manifestly 
false;   that,  secondly,   the   opinion  that   "the  people  never  so 
transfer  their  power  to  the  King  as  not  to  retain  habitual  power 
in  their  own  hands"  was  not  originally  his,  but  the  opinion  of 
Navarrus,  whom  he  had  quoted,  and  since  the  words  were  those 
of  a  noted  author  and  had  been  read  by  many  in  all  Christian 
countries   and   had   been   pondered   for  a   long   while   without 
calling  forth  any  accusation  to  the  efifect  that  Navarrus  had  laid 
the  ground  for  sedition,  he  did  not  see  why  they  should  now 
be  turned  into  a  source  of  calumny  against  himself.    Bellarmine 
then  summed  up  his  own  opinion  in  the  matter  by  asserting 
that:     "In  the  beginning  the  people  were  free,  either  to  create 
a  magistracy  with  defined  powers  and  for  a  time,  as  free  repub- 
lics do,  or  to  elect  a  King  with  absolute  power,  and  in  perpetuity, 
to  whom  they  had  transferred  all  their  own  power,  as  is  seen 
to   be   the   case  in   hereditary   monarchies.     But   after   such   a 
magistracy  has  been  established,  whether  it  be  temporary  or 
perpetual,  the  people  have  no  supreme  authority  over  it,  but 
the  magistrate  or  royal  otficial  has  the  right,  above  all,  to  this 
authority  in  regard  to  the  people.     Nor  is  one  at  liberty,  with- 
out serious  crime,  to  rebel   against  his  legitimate  ruler  or  to 

"Mcllwain,  loc.  cit.,  p.  153. 


HISTORY  OF  DEMOCRATIC  THEORY  117 

stir  up  sedition  and  rebellion."*'  In  his  De  Laicis  he  had  given 
a  most  lucid  exposition  of  how  this  must  he  so  from  the  very 
nature  of  things.  Moreover,  he  there  made  it  clear  that,  given 
a  legitimate  reason,  the  people  might  change  from  a  monarchical 
form  of  government  to  that  of  an  aristocracy  or  a  democracy." 
But,  except  for  his  doctrine  on  divided  sovereignty,  which  con- 
stitutes Bellarmine's  chief  contribution  to  the  science  of  gov- 
ernment, he  went  little  beyond  a  solidly  reasoned  defense  of 
what  was  already  received  in  Medieval  tradition. 

That  such  was  the  case  should  appear,  not  only  from  what 
has  been  already  shown,  but  also  from  the  fact  that,  at  the 
time  when  Bellarmine's  De  Controversiis  was  first  published, 
the  Catholics  of  France  had  for  some  time  been  appealing  to 
this  very  tradition,  as  embodied  in  their  national  institutions, 
in  the  etiEort  to  avert  the  succession  to  the  throne  of  an  heretical 
prince  who  might  rob  them  of  their  faith  as  the  English  had 
been  robbed  of  theirs.*'^ 

And  should  the  claim  that  this  tradition  had  been  an  actually 
living  one,  seem  in  need  of  any  further  corroboration,  this  will 
be  found  fully  supplied,  we  think,  in  the  following  words  from 
Alexander  J.  Carlyle,  whose  long  years  of  study  devoted  to 
the  careful  examination  and  comparison  of  Medieval  writings, 
apart  from  all  modern  gloss  and  misinterpretation,  have  made 
him  the  best  authority  thus  far  on  this  subject.  According  to 
him,  "The  first  principle  which  seems  to  me  to  be  behind  the 
whole  structure  of  Medieval  society,  is  this,  that  political  author- 
ity is  the  authority  of  the  whole  community.  The  great  repre- 
sentative machinery  in  which  this  was  finally  embodied,  repre- 
sents one  of  the  greatest  achievements  of  civilization,  and  is  a 
perpetual  monument  of  the  practical  genius  of  the  Middle  Ages. 
This  development  would  have  been  impossible,  as  its  appear- 
ance  would  be  unintelligible,  if  its  foundations  had  not  been 
laid  deep  in  the  principles  of  Medieval  society  and,  especially, 
in  the  principle  that  all  authority  is  the  authority  of  the  com- 

"  Apologia,  cap.  XIII. 

"  Opera  Omnia  Fevre  ed.,  vol.  Ill,  pp.  10-12. 

"Victor  de  Chalambert:     Histoire  de  la  Ligue,  vol.  I,  passim.     For  the 
appeal  to  this  special  motive  see  pp.  73-76. 


118  STATE  AND  CHURCH 

munity.  This  principle  is  implicit  in  the  two  great  practical 
facts  of  Medieval  society,  the  first,  that  law  is  the  law  of  the 
community,  the  second,  that  the  adminivStrative  organs  of  the 
community,  if  we  may  use  a  modem  phrase,  derive  their  author- 
ity from  the  consent  of  the  community."** 

Bellarmine's  controversy  with  James  I  was  soon  followed  by 
the  publication  of  Suarez's  two  works:  the  Defensio  Fidei 
Catholicae  and  the  De  Legihus.  The  first  was  an  exhaustive 
refutation  of  the  English  King's  contentions,  and  a  defense  of 
Bellarmine  that  furnished  the  occasion  for  a  much  ampler  theo- 
retic exposition  of  the  doctrine  of  consent.  Of  the  second, 
Paul  Janet,  in  his  Histoire  de  la  Science  Politique,  has  very 
truly  said :  "He  who  has  read  the  De  Legihus  of  Suarez  knows 
thoroughly  all  the  ethics,  natural  law  and  political  science  of 
the  Middle  Ages.  "*^  No  more  monumental  work  on  law  and 
government  has  yet  been  written.  What  is  very  much  to  our 
purpose,  it  is  here  that  the  principle  will  be  found  clearly  stated 
for  the  first  time  and  defended,  viz :  that,  under  proper  circum- 
stances, the  people  may  retain  the  supreme  power  in  them- 
selves,^°  and  that  in  such  States  as  *'are  de  facto  free  and  retain 
the  supreme  power  in  themselves,  yet  commit  the  problem  of 
passing  laws  to  a  senate,  or  to  some  leader  to  act  either  alone 
or  in  conjunction  with  a  senate,"  such  officials  "are,  perhaps, 
only  delegates,"  the  question  depending  on  a  point  of  fact  and 
not  of  law.^^ 

Now  it  is  this  principle,  as  embodied  in  our  own  constitution, 
together  with  the  principle  of  divided  sovereignty,  first  stated 
by  Bellarmine,  that  distinguishes  our  peculiar  form  of  govern- 
ment from  that  of  any  other  known  to  history.  In  his  speech, 
delivered  on  the  26th  of  November,  1787,  in  the  Convention  of 
Pennsylvania,  James  Wilson  said:  "Oft  have  I  viewed  with 
silent  pleasure  and  admiration  the  force  and  prevalence,  through 
the  United  States,  of  this  principle — that  the  supreme  power 
resides  in  the  people;  and  that  they  never  part  with  it.     It 

*"  American  Historical  Review,  October,  1913,  p.  6. 
"Vol.  II,  p.  176. 

»"  De  Legibus,  III,  c.  2,  n.  4 ;  c.  4,  n.  12 ;  c.  9,  n.  6. 
« Ibid.,  c.  4,  n.  12. 


HISTORY  OF  DEMOCRATIC  THEORY  119 

may  be  called  the  panacea  in  polities.  There  can  be  no  dis- 
order in  the  community  but  may  here  receive  a  radical  cure. 
If  the  error  be  in  the  legislature,  it  may  be  corrected  by  the 
constitution ;  if  in  the  constitution,  it  may  be  corrected  b}^  the 
people.  There  is  a  remedy,  therefore,  for  every  distemper  in 
government,  if  the  people  are  not  wanting  to  themselves.  For 
a  people  wanting  to  themselves  there  is  no  remedy ;  from  their 
power,  as  we  have  seen,  there  is  no  appeal ;  to  their  error,  there 
is  no  superior  principle  of  correction. " ''- 

Some  few  days  later,  that  is  on  December  1,  when  it  was 
objected  in  this  same  convention  that  the  new  system,  proposed 
for  ratification,  threatened  to  do  away  with  State  sovereignties, 
Wilson  replied  with  the  declaration  that:  "When  the  principle 
is  once  settled  that  the  people  are  the  source  of  authority,  the 
consequence  is,  that  they  may  take  from  the  subordinate  govern- 
ments powers  with  which  they  have  hitherto  trusted  them,  and 
place  those  powers  in  the  general  government,  if  it  is  thought 
that  they  will  be  productive  of  more  good.  They  can  distribute 
one  portion  of  power  to  the  more  contracted  circle,  called  State 
governments;  they  can  also  furnish  another  portion  to  the 
Government  of  the  United  States.""^ 

This  was,  indeed,  a  remarkable  application  of  the  principle 
of  consent,  and,  although  it  presupposes  the  whole  Medieval 
development  that  led  up  to  it,  G.  C.  Curtis  in  his  Constitutional 
History  of  the  United  States  is  almost  too  laconic  in  his  comment, 
that  it  "was  undoubtedly  a  novelty  in  political  science;  for  no 
government  had  yet  been  constructed  in  which  the  individual 
stood,  in  the  relation  of  subject,  to  two  distinct  sovereignties, 
each  possesed  of  a  distinct  sphere  and  each  supreme  in  its  own 
sphere.  "•'■'  For,  as  he  shows  elsewhere,  Vattel  expressed  the 
idea  universally  held  in  Europe  both  then  and  since,  when  in 
Le  Droit  des  Gens  he  maintained  "that  every  sovereignty, 
properly  so  called,  is,  in  its  own  nature,  one  and  individible. " 
But  it  is  scarcely  accurate  to  claim  that  in  this  ' '  the  f ramers  of 
the  Constitution  of  the  United  States  made  a  great  discovery 

"*  Works,  edited  by  J.  De  Witt  Andrews,  vol.  I,  p.  543. 
"Elliot's  Debates,  vol.  II,  p.  416, 
•*  Vol.  I,  p.  337. 


120  STATE  AND  CHURCH 

in  the  science  of  g'overnment.  "''■''  Bellarmine,  in  his  Be  Summo 
Pontiflce,  had  previously  explained  how,  on  the  basis  of  the 
principle  of  consent,  such  a  division  of  sovereignty  wajs  not 
only  possible,  but  most  desirable ;  and,  ais  we  shall  see,  there 
is  every  reason  to  believe  that  at  least  Madison  and  Wilson 
were  acquainted  with  Bellarmine  and  Suarez'  writings,  except 
for  the  fact  of  explicit  reference,  which,  under  the  circumstances, 
could  scarcely  have  been  prudent.  Bellarmine 's  opinion  was  that, 
"Because  of  the  fallen  state  of  human  nature,  a  rule  tempered 
by  all  three  forms  (the  monarchic,  the  aristocratic  and  the  demo- 
cratic), is  more  useful  than  a  simple  monarchy.  But  this 
mixed  form  evidently  requires  that  there  should  be  in  the 
commonwealth  one  supreme  ruler  who,  while  issumg  commands 
to  all,  should  himself  be  subject  to  none.  Those,  on  the  other 
hand,  who  preside  over  the  provinces  and  cities  should  not  be 
vicegerents  of  the  King  or  mere  annual  judges,  but  let  them  be 
real  rulers,  subject  in  obedience  to  the  supreme  ruler,  yet  in 
such  a  manner  as  at  all  times  to  hold  the  regulation  of  their 
respective  provinces  or  cities  to  be  a  matter  of  concern  to  them- 
selves and  not  the  concern  of  another.  Thus  the  commonwealth 
would  enjoy  the  benefits  both  of  a  monarchy  under  a  King  and 
of  an  aristocracy  under  a  select  body  of  rulers. 

"If  in  addition  to  this  it  were  provided  that  neither  the 
supreme  ruler  nor  those  who  ruled  under  him  should  attain 
to  such  positions  of  dignity  by  hereditary  succession  but  that 
those  best  fitted  should  be  selected  from  the  body  of  the  people 
and  elevated  to  them,  the  commonwealth  would  then  possess 
some  of  the  attributes  of  a  democracy.  That  this  is  the  best 
form  of  government  and  the  one  most  to  be  desired  in  this  mortal 
life,  we  shall  establish  by  two  arguments. 

"In  the  first  place  such  a  government  would  have  all  the  good 
qualities  which  have  been  previouslj^  shown  to  exist  in  a  mon- 
archy but  would  also  be  more  acceptable  and  advantageous  in 
this  life.  As  to  the  good  qualities  of  a  monarchy,  it  is  clear 
that  in  our  proposed  plan  of  government  they  would  be  found 
included,  since  such  a  government  comprises  an  element  of 
monarchy  in  the  true  and  proper  sense  of  the  word.     That  it 

"  Vol.  II,  p.  521. 


HISTORY  OF  DEMOCRATIC  THEORY  121 

would  be  more  acceptable  to  all  is  evident  from  the  fact  that 
everyone  prefers  that  form  of  government  in  which  he  himself 
can  take  a  part,  which  is  undoubtedly  possible  in  this  case,  since 
it  is  the  worth  of  a  man  and  not  his  lineage  that  will  be  taken 
into  consideration. 

"With  regard  to  the  advantages  of  such  a  system  there  is 
scarcely  need  of  insistence,  as  it  is  clear  that  one  man  cannot 
by  himself  rule  over  the  separate  provinces  and  cities,  but, 
whether  he  be  willing  or  not,  he  will  be  forced  to  entrust  the 
administration  of  them  either  to  attendants  acting  as  his'  vice- 
gerent, or  to  their  own  respective  rulers;  while,  on  the  other 
hand,  it  is  equally  certain  that  such  rulers  wull  show  much 
greater  eare  in  what  they  know  to  be  their  own  concern  than 
when  acting  as  the  vicarious  agent  of  another."'^*' 

This  shows  how  much  prejudice  there  is  in  the  contention  of 
G.  P.  Gooch  that  the  Jesuits  were,  at  once,  pure  inditferentists 
and  acute  opportunists  who  caught  up  the  first  weapons  that 
came  to  hand;"  and  also  how  much  nearer  the  truth  Lecky 
was  in  his  estimate  when  he  said:  "It  would  be  a  mistake  to 
suppose  that  the  Jesuits  advocated  liberal  principles  only  with 
a  view  to  theological  advantages,  or  in  Protestant  countries,  or 
under  the  shelter  of  ecclesiastical  authorities.  More  than  once 
they  maintained  even  their  most  extreme  forms  in  the  midst  of 
Catholic  nations,  and,  strange  as  the  asisertion  may  appear,  it 
is  in  this  order  that  we  find  some  of  the  most  rationalistic  in- 
tellects of  the  age. "''^  This  last  assertion,  to  be  sure,  implied, 
in  Lecky 's  mind,  that  to  do  what  the.y  did,  they  had  to  wrest 
dogmatic  tenets  into  conformity  with  natural  religion,  and  it 
is  based  on  the  persistent  Protestant  assumption  that  reason  and 
Christian  dogma  must  somehow  contradict  one  another.  But 
the  half-truth  which  the  assertion  contains;  that  is,  the  sort  of 
rationalism  of  which  the  Jesuits  were  guilty,  as  well  as  the 
nature  of  the  service  they  rendered  to  the  cause  of  liberty  in 
their  own  day,  may  be  considered  as  fully  described  in  the 
following   words   from  Burke:     "Reason"  said  he   "is  never 

"  Opera  Omnia,  vol.  I,  p.  467. 

"  English  Democratic  Ideas  in  the  17th  Century,  p.  28. 

"Loc.  cit.,  p.  149. 


122  STATE  AND  CHURCH 

inconvenient  but  when  it  comes  to  be  applied.  Mere  general 
truths  interfere  very  little  with  the  passions.  They  can,  until 
they  are  roused  by  a  troublesome  application,  rest  in  gi'eat  tran- 
quillity side  hy  side,  with  tempers  and  proceeding.*^  the  most 
directly  opposite  to  them.  Men  want  to  be  reminded  who  do  not 
want  to  be  taught :  because  those  original  ideas  of  rectitude 
to  which  the  mind  is  compelled  to  assent  when  they  are  pro- 
posed, are  not  always  as  present  to  it  as  they  ought  to  be. 
When  people  are  gone,  if  not  into  a  denial,  at  least  into  a  sort 
of  oblivion  of  those  ideas;  when  they  know  them  only  as  barren 
speculations,  and  not  as  practical  motives  for  conduct,  it  will 
be  proper  to  press,  as  well  as  to  offer  them  to  the  understanding ; 
and  when  one  is  attacked  by  prejudices  which  aim  to  intrude 
themselves  into  the  place  of  law,  what  is  left  for  us  but  to 
vouch  and  call  to  warranty  those  principles  of  original  justice 
from  whence  alone  our  title  to  everything  valuable  in  society 
is  derived?"^® 

In  the  interval  between  the  beginning  of  the  controversy  of 
James  I  with  Bellarmine  and  the  appearance  of  the  Defensio 
Fidei  Catholicae  and  the  De  Legihus  of  Suarez,  the  King  sud- 
denly found  himself  opposed  from  an  entirely  different  quarter, 
but  in  a  manner  which  was  to  prove  to  many,  in  England  at 
least,  the  practical  value  of  the  Jesuit  Doctrines  on  Government. 
This  new  opposition  was  started  by  the  great  and  learned,  if 
rather  crabbed  old  lawyer,  Sir  Edward  Coke,  of  whom 
G.  P.  Gooch  very  justly  says:  "If  he  did  not  aid  his  country- 
men to  conquer  new  liberties,  he  did  more  than  any  other  man 
to  secure  that  they  should  preserve  unimpaired  such  as  they 
already  possessed."*'*'  In  the  endeavor  to  carry  into  effect  the 
notion  that  he  was  entitled  to  rule  England  as  an  absolute 
sovereign,  James  attempted  to  make  use  of  the  Court  of  High 
Commission,  established  at  the  accession  of  Elizabeth,  for  cases 
of  an  ecclesiastical  nature.  As  this  was  governed  by  no  fixed 
rules  and  decided  without  appeal,  the  King  hoped  he  might 
bring  all  persons,  lay  and  spiritual,  under  its  jurisdiction.  To 
the  means  suggested.  Coke,  as  Lord  Chief  Justice,  made  answer 

"  Fragments  of  a  Tract  on  Popery  Laws. 
"Political  Thought  from  Bacon  to  Halifax,  p.  63. 


HISTORY  OF  DEMOCRATIC  THEORY  123 

that  the  practice  was  contrary  to  Magna  Charta.  Whereupon, 
the  High  Commission  being  silenced,  Archbishop  Bancroft  pro- 
posed that  recourse  should  be  had  to  the  notorious  measure  of 
"the  King  judging  whatever  cause  he  pleased  in  his  own  person, 
free  from  all  risk  of  prohibition  and  appeal."  Coke  again 
resisted  and,  when  the  King  in  a  rage  declared  it  treason  to 
affirm  that  he  was  in  any  way  under  the  law.  Coke  merely 
replied  in  the  words  of  a  thirteenth  century  cleric  and  lawyer 
by  saying:  "Thus  wrote  Bract  on;  'Rex  non  debet  esse  sub 
homine,  sed  sub  Deo  et  Lege.'  "  He  then  went  on  reminding 
the  King  that  he  "cannot  without  parliament,  change  any  part 
of  the  common  law  nor  create  any  offense  by  his  proclamation 
which  was  not  an  offense  before  "  and  again  that  "the  law  of 
England  is  divided  into  three  parts:  common  law,  statute  law, 
and  custom;  but  the  King's  proclamation  is  none  of  them." 

In  the  next  reign,  as  is  well  known,  Charles  I  strove  to  carry 
out  his  father's  principles.  This  led  to  the  stiff  conflict  between 
himself  and  parliament  that  resulted  in  rebellion.  And  here 
again  Coke  was  the  soul  of  the  opposition  and  its  energizing 
motive  force.  Finding  himself  without  supplies,  the  King  re- 
solved to  summon  the  great  council  of  the  nation.  Coke,  though 
quite  ready  to  advoeate  a  generous  grant  of  money,  was  deter- 
mined that  before  it  came  to  this  there  should  be  an  effectual 
redress  of  grievances.  He  thereupon  framed  the  famous  Petition 
of  Right  which  stands  out  in  English  history  as  a  second  Magna 
Charta.  In  spite  of  much  reluctance  and  opposition,  Coke 
succeeded,  almost  single  handed,  in  getting  the  bill  passed.  On 
its  return  from  the  Lords,  however,  it  was  found  that  the 
proviso  had  been  appended  "that  nothing  therein  contained 
should  be  construed  to  entrench  on  the  sovereign  power  of  the 
Crown."  Then  it  was  that  Sir  Edward  Coke  made  his  momen- 
tous speech  that  decided  the  fate  of  modem  liberty.  Said  he: 
"This  is  magnum  in  parvo.  It  is  a  matter  of  great  weight  and 
to  speak  plainly,  it  will  overthrow  all  our  Petitions;  it 
trenches  on  all  parts  of  it ;  it  flies  at  loans,  at  imprisonment,  and 
at  billeting  of  soldiers.  This  turns  all  about  again.  Look  into 
all  the  petitions  of  former  times;  the  assentinig  answer  to  them 
never  contained  a  saving  of  the  King 's  sovereignty.    I  know  that 


124  STATE  AND  CHURCH 

prerogative  is  part  of  the  law,  but  'sovereign  power'  is  no 
parliamentary  word.  In  my  opinion,  it  weakens  Magna  Charta 
and  all  the  statutes  whereon  we  rely  for  the  declaration  of  our 
liberties ;  for  they  are  also  absolute  without  any  saving  of 
'sovereign  power.'  Should  we  now  add  it,  we  shall  weaken  the 
foundation  of  the  law,  and  then  the  building  must  fall.  If  we 
grant  this  by  implication,  we  give  a  'sovereign  power'  above  all 
laws.  'Power'  in  law  is  taken  for  a  power  with  force:  the 
sheriff  shall  take  the  power  of  the  county.  What  it  means  here, 
God  only  knows.  It  is  repugnant  to  our  Petition.  This  is  a 
Petition  of  Right  granted  on  acts  of  parliament,  and  the  laws 
which  we  were  born  to  enjoy.  Our  ancestors  could  never  endure 
a  salvo  jure  suo  from  Kings — no  more  than  our  Kings  of  old 
could  endure  from  churchmen  [like  Bancroft,  etc.?]  salvo  honore 
Dei  et  Ecclesiae.  We  must  not  admit  it,  and  to  qualify  it  is 
impossible.  Let  us  hold  our  privileges  according  to  law.  That 
power  which  is  above  the  law,  is  not  fit  for  the  King  to  ask 
or  the  people  to  yield.  Sooner  would  I  have  the  prerogative 
abused  and  myself  to  lye  under  it ;  for  though  I  should  suffer,  a 
time  would  come  for  the  deliverance  of  the  country. ' ' 

It  was  thus  that  Sir  Edward  Coke  effectively  reminded  the 
English  people  of  their  ancient  Medieval  tradition  of  liberties 
at  a  time  when  they  were  in  most  imminent  danger  of  losing 
it,  in  the  same  way  as  the  French  and  other  continental  nations 
lost  their.s.  But  the  work  was  only  half  done.  There  yet  re- 
mained the  urgent  necessity  that  some,  in  the  words  of  Burke, 
should  "vouch  and  call  to  warranty  those  principles  of  original 
justice  from  whence  alone  our  title  to  everything  valuable  in 
society  is  derived."  Coke  himself  attempted  something  of  the 
sort  when  in  his  Reports  of  Cases  he  laid  it  down  as  a  principle 
"that  the  common  law  shall  control  acts  of  parliament  and  some- 
times shall  adjudge  them  to  be  merely  void;  for  where  an  act 
of  parliament  is  against  common  right  and  reason,  the  common 
law  shall  control  it  and  adjudge  it  to  be  void."  But  through 
the  machinations  of  Bacon,  Coke's  counterpart  in  meanness  and 
the  originator  of  modern  Kitchen  Philosophies,  this  was  used  as 
a  pretext  for  dismissing  the  Lord  Chief  Justice  from  the  King's 


HISTORY  OF  DEMOCRATIC  THEORY  125 

Bench."  Nor  has  the  doctrine  of  the  inalienable  rights  of  the 
individual  ever  yet  been  readmitted  into  the  English  constitu- 
tion. Aa  A.  F.  Pollard  says:  "The  growth  of  positive  law 
at  the  expense  of  divine  and  natural  law,  and  the  idea  that 
human  will  and  mundane  counsels  could  amend  the  foundations 
of  society,  is  the  beginning  of  the  sovereignty  of  parliament." 
Though  a  statement  of  real  fact,  this  is  also  illustrative  of  that 
intellectual  sclerosis  from  which  the  English  historical,  philo- 
sophical, and  legal  mind  has  suifered  so  much  in  consequence 
of  the  influence  of  Bacon,  Hobbes,  Locke,  Hume,  Bentham  and 
Austin.  Professor  Pollard  has  merely  taken  Austin's  word  for 
what  the  "divine  and  natural  law"  are,  and  the  bias  this  has 
caused  in  his  own  interpretation  of  history  may  be  gauged  from 
the  very  next  sentence  where  he  solemnly  announces  that,  ' '  without 
that  overriding  sovereignty  (of  parliament)  to  limit  and  a^bolish 
them,  English  medieval  liberties  would  have  petrified  society  on 
a  mould  of  local  and  class  particularism,  and  have  produced 
that  kind  of  ossification  which  stereotyped  oriental  communities, 
and  even  reduced  France  to  the  necessity  of  bursting  its 
social  shell  for  the  sake  of  expansion."^-  But  in  the  name  of 
what,  pray,  was  this  last  effected?  The  Declaration  of  the 
Bights  of  Man,  however  wild  and  erroneous,  certainly  came 
much  nearer  being  an  appeal  to  "divine  and  natural  law"  than 
an  abject  surrender  to  an  "omnicompetent"  English  debating 
society  placed  above  all  laws  by  merely  labelling  it  with  the 
antiquarian  name  of  Parliament.  Fortunately  for  us,  however, 
there  were  some  in  England  in  the  days  of  James  I  and  for  many 
years  after,  who  read  up  the  controversy  between  the  Scottish 
King  and  his  Jesuit  antagonists  and  learned  to  know  better 
than  either  John  Austin  or  Jean  Jacques  Rousseau.  These  were 
the  Whigs. 

John  Millar,  who  was  teaching  law  at  the  University  of 
Glasgow  at  the  time  when  James  Wilson  emigrated  to  the 
colonies,  and  who  may  be  taken  as  a  spokesman  for  the  Whigs 
in  the  time  of  Burke  and  of  our  providential  severance  from 
England,    gives,  in    brief    outline,  an    account    of    the    nature 

""Lord  Campbell,  Lives  of  the  Chief  Justices,  vol.  I,  pp.  278-339. 
"  The  Evolution  of  Parliament,  pp.  175,  176. 


126  STATE  AND  CHURCH 

and  origin  of  the  fundamental  doctrines  in  the  Whig  philosophy 
of  government.  In  an  essay  on  the  Progress  of  Science  Relative 
to  Law  and  Government  he  says:  "There  are  natural  rights, 
which  belong  to  mankind  antecedent  to  the  formation  of  civil 
society.  We  may  easily  conceive  [note  that  this  is  not  the 
same  as  Locke's  and  Rousseau's  unhistorical  assumption  of  fact], 
that,  in  a  state  of  nature,  we  should  be  entitled  to  maintain  our 
personal  safety,  to  exercise  our  natural  liberty,  so  far  as  it  does 
not  encroach  upon  the  rights  of  others;  and  even  to  maintain 
a  property  in  those  things  which  we  have  come  to  possess,  by 
original  occupancy,  or  by  our  labor  in  producing  them.  These 
rights  are  not  lost,  though  they  may  be  differently  modified  when 
we  enter  society.  A  part  of  them,  doubtless,  must  be  resigned 
for  the  sake  of  those  advantages  to  be  derived  from  the  social 
state.  We  must  resign,  for  example,  the  privilege  of  avenging 
injuries,  for  the  advantage  of  being  protected  by  courts  of 
justice.  We  must  give  up  a  part  of  our  property,  that  the 
public  may  be  enabled  to  afford  that  protection.  We  must  yield 
obedience  to  the  legislative  power,  that  we  may  enjoy  that  good 
order  and  tranquillity  to  be  expected  from  its  cool  and  dispas- 
sionate regulations.  But  the  rights  which  we  resign  ought  in 
all  these  cases,  to  be  compensated  by  the  advantages  obtained; 
and  the  restraints,  or  burdens  imposed,  ought  neither  to  be 
greater,  nor  more  numerous,  than  are  necessary  for  the  general 
welfare  and  happiness  .... 

"In  England,  where  the  attention  of  the  inhabitants  has  been 
long  directed  to  speculations  of  this  nature,  the  two  original 
principles  of  the  government  ....  were  distinguished  by 
political  writers  as  far  hack,  at  least,  as  the  commencement  of  the 
contest  hetweeri  the  King  and  the  people,  upon  the  accession  of 
the  House  Stewart,  and  were  then  respectively  patronized  and 
adopted  by  the  two  great  parties  into  which  the  nation  was 
divided.  The  principle  of  authority  was  that  of  the  tories;  by 
which  they  endeavored  to  justify  the  pretensions  of  the  sovereign 
to  absolute  power.  As  the  dignity  of  the  monarch  excited  uni- 
versal respect  and  reverence  and  as  it  was  not  conferred  by 


HISTORY  OF  DEMOCRATIC  THEORY  127 

election,  but  had  been  immemorially  possessed  by  a  hereditary 
title,  it  was  understood  to  be  derived  from  the  author  of  our 
nature  who  has  implanted  in  mankind  the  seeds  of  loyalty  and 
allegiance.  The  monarch  is  therefore,  not  accountable  to  his 
subjects,  but  only  to  the  Deity,  by  whom  he  is  appointed ;  and 
consequently  his  power,  so  far  as  we  are  concerned,  is  absolute, 
requiring  on  our  part,  an  unlimited  passive  obedience.  If  guilty 
of  tyranny  and  oppression,  he  may  be  called  to  an  account  in  the 
next  world,  for  transgressing  the  laws  of  his  Maker;  but  in  this 
life,  he  is  totally  exempt  from  all  restraint  or  punishment ;  and 
the  people,  whom  heaven  in  its  anger  has  visited  with  this  afflic- 
tion, have  no  other  resource  than  prayers  and  supplications. 

"The  Whigs,  on  the  other  hand,  founded  the  power  of  a 
sovereign,  and  of  all  inferior  magistrates  and  rulers,  upon  the 
principle  of  utility.  They  maintained,  that  asi  all  government 
is  intended  for  defending  the  natural  rights  of  mankind,  and 
for  promoting  the  happiness  of  human  society,  every  exertion 
of  power  in  governors,  inconsistent  with  that  end,  is  illegal  and 
criminal ;  and  it  is  the  height  of  absurdity  to  suppose,  that,  when 
an  illegal  and  unwarrantable  power  is  usurped,  the  people  have 
no  right  to  resist  the  exercise  of  it  by  punishing  the  usurper. 
The  power  of  a  King  is  no  otherwise  of  Divine  appointment  than 
any  other  event  which  happens  in  the  dispositions  of  Providence ; 
and,  in  the  share  of  government  which  is  devolved  upon  him, 
he  is  no  more  the  vicegerent  of  God  Almighty  than  any  inferior 
officer,  to  whom  the  smallest  or  meanest  branch  of  administra- 
tion is  committed. 

"At  the  same  time  that  the  Whigs  considered  the  good  of 
society  as  the  foundation  of  our  submission  to  government,  they 
attempted  to  modify  and  confirm  that  principle  by  the  additional 
principle  of  consent.  As  the  union  of  mankind  in  society  is  a 
matter  of  choice,  the  particular  form  of  government  introduced 
into  any  country  depends,  in  like  manner,  upon  the  inclna- 
tion  of  the  inhabitants.  According  to  the  general  current  of 
popular  opinion,  they  adopt  certain  political  arrangements,  and 
submit  to  different  rulers  and  magistrates,  either  by  positive  reg- 
ulation and  express  contracts  or  by  acting  in  such  a  manner  as 
gives  room  to  infer  a  tacit  agreement.     As  government,  there- 


128  STATE  AND  CHURCH 

fore,  arose  from  a  contract,  or  rather  a  number  of  contracts, 
either  expressed  or  implied,  among  the  different  members  of 
society,  the  terms  of  submission  between  the  governors  and  the 
governed,  as  well  as  the  right  of  punishing  either  party,  upon 
a  violation  of  those  original  agreements,  may  thence  be  easily 
and  clearly  ascertained. 

"With  respect  to  this  origin  of  the  duty  of  allegiance,  which 
has  been  much  insisted  on  by  the  principal  writers  in  this 
country,  and  which  has  of  late  been  dressed  and  presented  in 
different  shapes  by  politicians  on  the  continent,  it  seems  rather 
to  be  a  peculiar  explanation  and  view  of  the  former  principle 
of  utility,  than  any  new  or  separate  ground  of  our  submission 
to  government ;  and  even,  when  considered  in  this  light,  it  must 
be  admitted  with  such  precautions  and  limitations,  that  very 
little  advantage  is  gained  by  it.'"'^ 

This  last  was  inserted  for  the  evident  purpose  of  taking  the 
wind  out  of  the  sails  of  a  set  of  dissenters  in  England  who  had 
a  way  of  flying  in  the  face  of  all  tradition,  and  between  whom 
and  themelves,  the  old  Whigs  ever  insisted  on  making  a  clear 
and  marked  distinction. 

Among  the  earliest  to  take  up  the  genuine  Whig  position  just 
described,  was  Sir  Edward  Sandys,  the  leader  of  the  independent 
party  in  Parliament,  who  drew  up  "With  great  force  of  reason- 
ing and  Spirit  of  Liberty"  the  remonstrance  against  the  con- 
duct of  James  I  towards  his  first  Parliament,  and  had  often 
appealed  for  a  redress  of  the  grievances  of  the  people,  and  even 
' '  learned  to  raise  his  voice  for  the  toleration  of  those  with  whom 
he  did  not  wholly  agree.  "^*  It  was  he  moreover  who,  when 
chief  officer  of  the  second  London  company  for  Virginia, 
established  representative  government  in  that  colony.  This 
was  in  1619  and,  therefore,  before  the  landing  of  the  Puritans. 
Now  Sandys  had  been  educated  by  Richard  Hooker  and  must 
have  consequently  been  well  versed  in  the  principles  of  St. 
Thomas  and  the  earlier  scholastics  on  government ;  so  that,  when 
the  controversy  arose  between  King  James  and  the  Jesuits,  his 

"  An  Historical  View  of  the  English  Government  from  the  Settlement  of 
the  Saxons  in  Britain  to  the  Revolution  in  1688  (1812),  vol.  IV,  pp.  294-300. 
"Alexander  Brown,  The  First  Eepublic  in  America,  p.  75. 


HISTORY  OF  DEMOCRATIC  THEORY  129 

mind  was  particularly  prepared  to  grasp  the  practical  bearing 
of  the  much  discussed  Jesuit  doctrines  of  the  problem  of 
liberty,  which  he  and  his  circle  of  friends  were  trying  to 
unravel.  As  one  of  this  circle,  stood  that  other  great  figure, 
John  Selden,  whose  opinions,  because  of  his  writings,  are  more 
explicitly  known.  In  his  Table-talk  we  have  his  views  as  formed 
largely  within  the  shadow  of  the  great  Puritan  upheaval,  yet 
offering  a  striking  contrast  to  those  of  Milton;  a  fact  which  in 
itself  would  justify  the  statement  of  G.  P.  Gooch  that  "the  firs-t 
Whig  was  not  Shaftesbury,  but  Selden."*'' 

Confining  ourselves  to  the  points  touching  on  government  we 
find  the  following  among  Selden 's  reported  utterances:  "If 
our  Fathers  have  lost  their  Liberty,  why  may  not  we  labor  to 
regain  it?  Answ.  We  must  look  to  the  Contract;  if  that  be 
rightly  made  we  must  stand  to  it ;  if  we  once  grant  we  may  recede 
from  Contracts  upon  any  inconveniency  that  may  afterwards 
happen,  we  shall  have  no  Bargain  Kept."  "A  King  is  a  thing 
Men  have  made  for  their  own  Sakes,  for  quietness'  sake." 
"Kings  are  all  individuals,  this  or  that  King;  there  is  no  species 
of  Kings.  A  King  that  claims  Privileges  in  his  own  Country, 
because  they  have  them  in  another,  is  just  as  a  cook,  that  claims 
fees  in  one  Lord's  House,  because  they  are  allowed  in  another. 
If  the  Master  of  the  House  will  yield  them,  well  and  good." 
"There  is  not  anything  in  the  World  more  abused  than  this 
sentence,  Salus  populi  suprema  Lex  esto;  for  we  apply  it,  as 
if  we  ought  to  forsake  the  known  Law,  when  it  may  be  most 
for  the  advantage  of  the  People,  when  it  means  no  such 
thing  ....  (But)  in  all  the  Laws  you  make,  have  a  special 
Eye  to  the  Good  of  the  People."  ''Objection  He  that  makea 
one,  is  greater  than  he  that  is  made ;  the  People  make  the  King 
ergo.  Answer.  .  .  .  The  answer  to  all  these  Doubts  is.  Have 
you  agreed  so?  if  you  have,  then  it  must  remain  till  you  have 
altered  it."  "When  the  Schoolmen  talk  of  Recta  Ratio  in 
Morals,  either  they  understand  Reason  as  it  is  governed  by  a 
Command  from  above,  or  else  they  say  no  more  than  a  Woman, 
when  she  says  a  thing  is  so,  because  it  is  so ;  that  is,  her  Reason 
persuades  her   'tis  so.     The  other  Acception  has  sense  in  it." 

«» Political  Thought  from  Bacon  to  Halifax,  p.  76. 


130  STATE  AND  CHURCH 

"I  cannot  fancy  to  myself  what  the  Law  of  Nature  means,  but 
the  Law  of  God.  How  should  I  know  I  ought  not  to  steal, 
I  ought  not  to  commit  Adultery,  unless  somebody  had  told  me 
so?  Surely  'tis  because  I  have  been  told  so!  'Tis  not  because 
I  think  I  ought  not  to  do  them,  nor  because  you  think  I  ought 
not ;  if  so,  our  minds  might  change ;  whence  then  comes  the 
restraint?  From  a  higher  Power;  nothing  else  can  bind.  I 
cannot  bind  myself,  for  I  may  untie  myself  again ;  nor  an 
equal  cannot  bind  me,  for  we  may  untie  one  another ;  it  must  be 
a  superior,  even  God  Almighty.  If  two  of  us  make  a  Bargain, 
why  should  either  of  us  stand  to  it  ?  What  need  you  care  what 
you  say,  or  what  need  I  care  what  I  say?  Certainly  because 
there  is  something  about  me  that  tells  me  Fides  est  servanda; 
and  if  we  after  alter  our  Minds  and  make  a  new  Bargain, 
there's  Fides  servanda  there  too."  "Most  Men's  Learning  is 
nothing  but  History  dully  taken  up.  If  I  quote  Thomas 
Aquinas  for  some  Tenet,  and  believe  it,  because  the  Schoolmen 
say  so,  that  is  but  History.  Few  men  make  themselves  masters 
of  the  things  they  write  or  speak.  The  Jesuits  and  the  Lawyers 
of  France,  and  the  Low-countrymen,  have  engrossed  all  learn- 
ing.    The  rest  of  the  world  make  nothing  but  Homilies." 

During  the  Puritan  Revolution,  Protestantism  had  its  one 
best  chance  to  show  what  it  could  do  towards  creating  a  social 
order.  Yet  the  result  should  have  surprised  those  only  who  were 
blind  to  its  essential  antinomianism.  With  the  return  of  the 
Stuarts  the  outstanding  problem  was  precisely  that  of  heal- 
ing those  wounds  which,  in  the  words  of  the  Declaration  of 
Breda>,  had  for  "so  many  years  together  been  kept  bleeding." 
The  reaction  was  naturally  towards  absolutism  in  government. 
But  happily  for  the  cause  of  liberty  Hobbes  appeared  with  his 
theory  of  ethics  and  politics.  "The  foundation  whereof,"  as 
Cudworth  said,  "is  first  laid  in  the  villanizing  of  human  nature; 
as  that,  which  has  not  so  much  as  any  the  least  seeds  either  of 
political ness  or  ethicalness  at  all  in  it ;  nothing  of  equity  and 
philanthrophy  .  .  .  nothing  of  public  and  common  concern, 
but  all  private  and  selfish."  This  was  no  more  than  what 
Machiavelli,  Luther  and  Calvin  had  maintained.  But  in  the 
light  of  recent  experience  this  villainizing  of  human  nature  was 


HISTORY  OF  DEMOCRATIC  THEORY  131 

seen  to  shake  the  very  foundations  of  all  morality.     Refuta- 
tions abounded  and  for  a  century  or  more  Hobbes'  influence 
may  be  traced  in  the  efforts,  often  one-sided  and  indirect,  to 
undermine  his  position.     In  the  beginning"  we  find  men  such 
as  Cumberland,  Cudworth  and  Clarke  taking  something  of  the 
high   ground   of   Medieval   scholastic   thought   which   was  still 
being  studied  in  the  universities.     Thus  Hobbes'  contention  was 
"that  sovereignty  is  essentially  infinite  and  therefore  altogether 
inconsistent   with   religion,   that   would   limit   and   confine   it," 
and   that   "eonscience,   which   religion   introduceth,   is  private 
judgment   of   good   and   evil,   just   and   unjust,   and   therefore 
altogether  inconsistent  with  true  politics;  that  ean  admit  of  no 
private  conscience,  but  only  one  public  conscience  of  the  law." 
To  this  Cudworth  replied  that  "authority  of   commanding  is 
such  a  right,  as  supposes  obligation  in  others  to  obey,  without 
which  it  could  be  nothing  but  mere  will  and  force.     But  none 
can  be  obliged  in  duty  to  obey,  but  by  natural  justice;  com- 
mands,  as   such,   not  creating  obligation   but   presupposing  it. 
For,  if  persons  were  not  before  obliged  to  obey,  no  commands 
would  signify  anything  to  them.     Wherefore,  the  first  original 
obligation  is  not  from  will,  but  nature"  .    .    .  and  again  "Nor, 
indeed,  can  this  private  judgment  of  men,  according  to  their 
appetite  and  utility,  be  possibly  otherwise  taken  away,  than  by 
natural  justice,  which  is  a  thing,  not  of  a  private,  but  of  a 
public  and  common  nature;  and  by  conscience,  that  obligeth 
to  obey  all  the  lawful  commands  of  civil  sovereigns,  though 
contrary    to    men's    appetites    and    private    interest.     Where- 
fore conscience  also,  is  in  itself,  not  of  a  private  and  partial, 
but  of  a  public  and  common  nature;  it  respecting  Divine  laws, 
impartial  justice  and  equity,  and  the  good  of  the  whole,  when 
clashing  with  our  own  selfish  good,  and  private  utility.     This 
is  the  only  thing  that  can  naturally  consoeiate  mankind  together, 
lay  a  foundation  for  bodies  politic,  and  take  away  that  private 
will  and   judgment,   according  to   men's  appetite   and  utility, 
which  is  inconsistent  with  the  same.    ...     It  is  true  indeed, 
that  particular  persons  must  make   a  judgment   in  conscience 
for  themselves  (a  public  conscience  being  nonsense  and  ridicu- 
lous)  and  that  they  may  also  err  therein;  yet  is  not  the  rule 


132  STATE  AND  CHURCH 

neither,  by  which  conscience  judgeth,  private;  not  itself  unac- 
countable unless  in  such  mistaken  fanatics,  as  professedly  fol- 
low private  impulses,  but  either  the  natural  and  eternal  laws 
of  God,  or  else  his  revealed  will,  things  more  public  than  the 
civil  laws  of  any  country,  and  of  which  others  also  may 
judge.  Nevertheless,  we  deny  not,  but  that  evil  persons  may, 
and  do  sometime  make  a  pretence  of  conscience  and  religion, 
in  order  to  sedition  and  rebellion,  as  the  best  things  may  be 
abused ;  but  this  is  not  the  fault  of  religion,  but  only  of  the  men ; 
conscience  obliging,  though  first  to  obey  God,  yet,  in  subordi- 
nation to  him  the  laws  of  civil  sovereigns  also." 

These  words  appear  at  the  very  end  of  a  perfect  wilderness 
of  ill  assorted  bits  of  erudition  that  form  the  contents  of  the 
author's  noted  work.  The  True  Intellectual  System  of  the  Uni- 
verse.^^  Yet  they  clearly  show  how  far  back  thought  had 
traveled  from  the  position  taken  up  by  Milton,®''^  or  by  that 
genial  old  Puritan,  John  Winthrop,  when  in  his  Arhitary  Gov- 
ernment Described  he  made  the  assertion,  "that  the  officers  of 
this  body  politic  have  a  rule  to  walk  by  in  all  their  administra- 
tions, which  rule  is  the  Word  of  God,  and  such  conclusions  and 
deductions  as  are,  or  shall  be,  regularly  drawn  from  thence." 
What  is  more,  we  know  that  Hamilton  must  have  read  the  above 
passages,  since  a  pay-book  kept  by  him  in  1776  and  interspersed 
with  notes  and  reflections  upon  political  philosophy,  contains  a 
list  of  books,  and  among  others  such  as  "Hobbes'  Dialogues" 
and  "Cicero's  Morals,"  there  also  occurs  "Cudworth's  Intel- 
lectual System.""® 

The  note  thus  struck  by  Cudworth  becomes  dominant  in  the 
thought  of  the  times  and  is  perceived  clearly  in  the  poetry  even, 
of  Dryden,  Cudworth 's  contemporary,  and  later  in  that  of 
Pope,®^  whose  preceptor  in  philosophy,   Bolingbroke,   is  noted 

"First  published  in  1678  (1838),  vol.  II,  pp.  357,  359-360. 

"See  below,  ch.  6. 

**  Henry  Ford,  Alexander  Hamilton,  p.  23. 

'•Suarez'  definition  of  Eternal  Law  runs:  "Eternal  law  is  the  free 
determination  of  the  will  of  God,  ordaining  the  rule  to  be  observed,  either, 
first  generally  by  all  parts  of  the  universe  as  a  means  to  a  common  good, 
whether  immediately  belonging  to  it  in  respect  of  the  entire  universe,  or,  at 
least  in  respect  of  the  singular  parts  thereof,  or  secondly,  to  be  specially 


HISTORY  OF  DEMOCRATIC  THEORY  133 

for  having  been  the  greatest  plagiarist  of  his  age,  after  Voltaire. 
The  immediate  consequence  was,  that  political  controversy  found 
itself  supplied  with  a  much  broader  and  generally  recognized 
ethical  basis  for  argument.  With  the  Puritans  and  dissenters, 
generally,  reduced  to  live  on  meagre  sutferance  under  the  oppres- 
sive shadow  of  the  Established  Church,  the  Whigs  were  now  freer 
to  take  up  the  contest  against  the  defenders  of  the  Divine  Right 
of  Kings  on  the  ground  of  civil  liberty  alone.  Nor  were  the 
Jesuits  and  their  doctrines  left  out  of  account  in  this  new  devel- 
opment towards  recovering  what  the  Reformation  had  ruined.  In 
the  preface  of  his  Beligio  Lmci  Dryden,  a  decided  Tory,  testifies 
to  the  fact  that  the  Jesuits  were  still  being  widely  read.  Con- 
trasting the  danger  that  threatened  from  Papists  and  Fanatics, 
he  admits  that  he  thinks  the  former  "the  least  dangerous,  at 
least  in  appearance,  to  onr  present  state"  but  then  he  goes  on 
to  raise  the  old  bogy  by  asking :  ' '  how  can  we  be  sure  from  the 
practice  of  Jesuited  Papists  in  that  [the  Catholic]  religion? 
For  not  two  or  three  of  that  order,  as  some  of  them  wonld  im- 
pose upon  us,  but  almost  the  whole  body  of  them,  are  of  opinion, 
that  their  infallible  master  has  a  right  over  Kings  not  only  in 
spirituals  but  temporals.  Not  to  name  Mariana,  Bellarmine, 
Emanuel  Sa,  Molina,  Santarel,  Simancha,  and  at  least  twenty 
others  of  foreign  countries;  we  can  produce  of  our  own  nation, 
Campion,  and  Doleman  or  Parsons,  besides  many  others  are 
named  whom  I  have  not  read,  who  all  of  them  attest  this 
doctrine.  "■'°  Sir  Thomas  Brown  testifies  to  the  vsame  fact  in 
his  Religio  Medici  where  he  refers  to  Suarez  and  quotes  Bel- 
larmine as  if  their  works  were  the  subject  of  common  study." 
The  Tories,  moreover,  used  as  their  chief  argument  against  the 

observed   by   intellectual   creatures   in   respect   to    their   free    operations." 
De  Legibus,  II,  c.  3,  n.  6. 

Pope  in  his  Essay  on  Man  says: 

God  in  the  nature  of  each  being  founds 

Its  proper  bliss,  and  sets  its  proper  bounds. 

But  as  He   framed   a  whole   the   whole   to   bless 

On  mutual  wants  builds  mutual  happiness 

So  from  the  first  eternal  order  ran 

And  creature  linked  to  creature  man  to  man. 

"Works   (1837),  vol.  I,  p.  71. 

"a  Works,  edited  by  Chas.  Sayle,  vol.  I,  p.  xx  and  p.  24. 

"b/btd.,  vol.  II,  pp.  288,  313. 


134  STATE  AND  CHURCH 

Whigs,  the  evident  fact  that  the  latters'  principles  were 
derived  from  the  Jesuits.  Dryden,  for  instance,  in  the  post- 
script to  his  translation  of  the  History  of  the  League  by 
Maimbourg,  (undertaken  in  order  "to  increase  the  unpopularity 
of  the  Whigs,  by  ascribing  to  the  association  which  Shaftesbury 
had  proposed  the  same  motives  and  principles  which  actuated 
the  members  of  the  League,")  held  Bellarmine  up  to  execra- 
tion, for  maintaining  that,  '*in  the  kingdoms  of  men,  the  power 
of  the  king  is  from  the  people,  because  the  people  make  the 
king."  While  Sir  Robert  Filmer,  in  his  Patriarcha  or  the 
Natural  Pow^r  of  Kings,  saw  no  better  way  of  exposing  the 
villainous  doctrines  of  those  who  contested  the  divine  right  of 
Kings,  than  by  a  brief  yet  exact  summary  of  the  chapter  in 
Bellarmine 's  De  Laicis,  to  which  James  I  had  himself  objected. 
This  summary  of  Filmer 's  reads:  '*To  make  evident  the 
grounds  of  this  question  about  the  Natural  Liberty  of  Man- 
kind, I  will  lay  down  some  passages  of  Cardinal  Bellarmine 
that  may  best  unfold  the  state  of  this  controversie.  Secular 
or  civil  power  (saith  he)  is  instituted  by  men ;  it  is  in  the  people, 
unless  they  bestow  it  on  a  Prince.  This  power  is  immediately 
in  the  whole  multitude,  as  in  the  subject  of  it;  for  this  power 
is  in  the  Divine  Law,  but  the  Divine  Law  hath  given  this  power 
to  no  particular  man.  If  the  Positive  Law  be  taken  away  there  is 
left  no  reason  why  among.st  a  multitude  (who  are  equal)  one 
rather  than  another  should  bear  rule  over  the  rest.  Power  is 
given  by  the  multitude  to  one  man,  or  to  more,  by  the  same  law  of 
nature ;  for  the  commonwealth  cannot  exercise  this  power,  there- 
fore, it  is  bound  to  bestow  it  upon  some  one  man  or  some  few.  It 
depends  upon  the  consent  of  the  multitude  to  ordain  over  them- 
selves a  king,  counsel  or  other  magistrates;  and,  if  there  be  a 
lawful  cause,  the  multitude  may  change  the  kingdom  into  an 
aristocracy  or  democracy.  Thus  far  Bellarmine;  in  which  pas- 
sages are  comprised  the  strength  of  all  that  I  have  read  or  heard 
produced  for  the  natural  liberty  of  the  subject."  " 

This  challenge,  the  Whigs  could  scarcely  ignore  and  the  two 
most  notable  contributions  from  their  side  of  the  controversy: 
Sidney's  Discourses  Concerning  Government,  and  Locke's  Two 

"  Edition  of  1680,  pp.  8-9. 


HISTORY  OF  DEMOCRATIC  THEORY  135 

Treatises  on  Government,  had  the  twofold  purpose  of  refuting 
the  Tories'  theory  as  expounded  by  Filmer,  and  of  justifying 
the  doctrines  which  Filmer  attributed  to  Bellarmine.  Con- 
oerning  school-divines,  whom  Filmer  included  in  one  general 
condemnation,  Sidney  answered:  "Though  the  schoolmen 
were  corrupt,  they  were  neither  stupid  nor  unlearned.  They 
could  not  but  see  that  which  all  men  saw,  nor  laj^  more  approved 
foundations  than  that  'man  is'  naturall}'  fiiee';  that  he  cannot 
justly  be  deprived  of  that  liberty  without  cause ;  and  that  he 
doth  not  resign  it  or  any  part  of  it,  unless  it  be  in  consideration 
of  a  greater  good,  which  he  proposes  to  himself. ' '  A  commenda- 
tion, the  first  part  of  which,  tallies  closely  with  what  Grotius  had 
said  in  his  De  Jure  Belli  et  Pads  in  justification  of  his  own  use 
of  the  scholastics:  "Whenever,"  says  Grotius,  "they"  (the 
Scholastics)  "are  found  to  agree  on  moral  questions  they  can 
scarcely  be  wrong — they  who  are  so  wonderfully  keen  in  dis- 
covering the  flaws  in  others'  arguments.  Yet  even  in  their 
zealous  defence  of  an  opposite  doctrine  they  furnish  a  most 
praiseworthy  example  of  modesty.  For  reasons  are  their 
weapons  against  each  other,  not  personal  insult — that  spawn  of 
barren  minds — a  usage  which  has  lately  begun  shamefully  to 
dishonor  letters."" 

With  regard  to  Bellarmine  and  Suarez,  however,  Sidney  was 
more  explicit.  To  the  former  he  refers  seven  times,  and  to  the 
latter  twice,  in  the  first  hundred  and  twenty-eight  pages.  The 
most  notable  of  these  passages  is  that  dealing  directly  with  the 
doctrines  as  given  above  by  Filmer,  where  Sidney  says:  "I  do 
not  find  any  great  matters  in  the  passages  taken  out  of  Bel- 
larmin,  which  our  author  says  'comprehend  the  strength  of  all 
that  he  had  ever  heard,  read,  or  seen  produced  for  the  natural 
liberty  of  the  subject.'  But  as  he  has  not  told  us  where  they 
are  to  be  found,  I  do  not  think  myself  obliged  to  examine  all 
his  works,  to  see  whether  they  are  rightly  cited  or  not.  How- 
ever, there  is  ciertainly  nothing  new  in  them.  We  see  the  same 
as  to  the  substance,  in  those  who  wrote  many  ages  before  him, 
as  well  as  in  many  that  have  lived  since  his  time,  who  neither 
minded  him,  nor  what  he  had  written.     I  dare  not  take  upon  me 

'•  Prolegomena,  52. 


136  STATE  AND  CHURCH 

to  give  an  account  of  his  works  having  read  few  of  them  (sic)^* 
but  as  he  seems  to  have  laid  the  foundation  of  his  discourses 
in  such  common  notions  as  were  assented  to  by  all  mankind, 
those  who  follow  the  same  method  have  no  more  regard  to 
Jesuitism  and  Popery,  though  he  was  a  Jesuite  and  a  cardinal 
than  they  who  agree  with  Faber  and  other  Jesuits  in  the  princi- 
ples of  Geometry,  which  no  sober  man  ever  denied. "^'^ 

Algernon  Sidney  wrote  in  the  days  when  James  II,  ambitious 
to  emulate  the  Galilean  practices  of  Louis  XIV,  stood  out,  even 
against  the  Pope,'''^  in  his  efforts  to  free  himself  from  the  tram- 
mels of  the  constitution.  The  injustice  of  Sidney's  trial  and 
death  caused  him  to  be  considered  by  the  Whigs  as  a  martyr 
for  liberty,  very  much  in  the  same  way  as  the  Tories  looked 
upon  Charles  I  as  a  martyr  for  the  divine  right  of  kings. 

Locke,  on  the  other  hand,  wrote  his  Two  Treatises  in  Justi- 
fication of  the  Revolution  of  1688.  In  these,  no  explicit  men- 
tion is  made  of  the  scholastics  or  their  writings,  yet  references 
to  Hooker  are  frequent  and  the  work  itself  is  even  more  of  a 
direct  attempt  than  Sidney's,  to  enlarge  upon  Filmer's  synopsis 
of  Bellarmine.  As  Sir  James  MacKintosh  has  said:  "Mr. 
Locke's  general  principles  of  government  were  adopted  by 
him,  probably  without  much  examination,  as  the  doctrine  which 
had  for  ages  prevailed  in  the  schools  of  Europe,  and  which 
afforded  an  obvious  and  adequate  justification  of  a  resistence 
to  oppression.  He  delivers  them  as  he  found  them,  without  even 
appearing  to  have  made  them  his  own  by  new  modifications. 
The  opinion  that  the  right  of  the  magistrate  to  obedience,  is 
founded  in  the  original  delegation  of  power  by  the  people  to 
the  government,  is  at  least  as  old  as  the  writings  of  St.  Thomas, 
and,  in  the  beginning  of  the  seventeenth  century,  it  was  regarded 
as  the  common  doctrine  of  all  the  divines,  jurists  and  philoso- 
phers who  had  at  that  time  examined  the  moral  foundation  of 
political  authority. ' ' " 


"  He  need  only  have  read  one. 
"  (1805),  vol.  I,  p.  20. 

"  W.  E.  H.  Lecky,  History  of  England  in  the  Eighteenth  Century,  (1878), 
vol.  I,  pp.  20-21. 

"  Esaay  on  The  Philosophical  Genius  of  Bacon  and  LocJce. 


HISTORY  OF  DEMOCRATIC  THEORY  137 

In  the  light  of  what  we  have  seen  this  statement  is  no  more 
than  a  plain  statement  of  fact,  and  coincides  fully  with  the 
assertion  of  J.  Q.  Adams,  that  the  theory  of  "consent,"  as 
embodied  in  our  Declaration  of  Independence  and  our  Con- 
stitution, "had  been  working  itself  into  the  mind  of  man  for 
many  ages."  But  with  regards  to  Sidney  and  Locke,  this 
should  be  noted.  Neither  were  real  thinkers,  and  in  their  zeal 
to  show  the  wrong  in  Toryism,  they  lost  sight  of  such  experience 
of  the  past  as  was  embodied  in  Medieval  tradition,  and  in  theory 
both  lean  considerably  away  from  the  sound  principles  in 
Medieval  teachings  on  government.  As  a  result,  they  furnished 
grounds  for  the  more  superficial  radicalism  of  dissenters  like  Drs. 
Price  and  Priestly,  and  extremists  such  as  Home  Tooke  and 
Thomas  Paine.  Nor  were  the  Whigsi  themselves  blind  to  this 
fact.  Burke  declared :  ' '  The  bane  of  the  Whigs  has  been  the 
admission  among  them  of  the  corps  of  schemers,  who  in  reality 
and  at  bottom,  mean  little  more  than  to  indulge  themselves  with 
speculations;  but  who  do  us  infinite  mischief  by  persuading 
many  sober  and  well-meaning  people  that  we  have  designs  incon- 
sistent with  the  constitution  left  us  hy  our  forefathers.  .  .  . 
Would  to  God  it  were  in  our  power  to  keep  things  ivhere  they. are 
in  point  of  form,  pro\dded  we  were  able  to  improve  them  in 
point  of  substance."'^  This  was  written  by  Burke  to  the 
Sheriff  of  Bristol  in  1780.  In  the  following  year  Josiah  Tucker, 
Dean  of  Gloucester,  published  his  Treatise  Concerning  Civil 
Government.  This  is  an  explicit  review  of  Locke  and  his  more 
radical  followers,  from  the  standpoint  of  the  genuine  Whig. 
Concerning  the  derivation  of  power  in  government  he  says: 
"The  Ideas  of  a  Quasi-Contraict  contain  our  own  on  this  Head, 
and  those  of  every  constitutional  Whig  throughout  the  King- 
dom." But  to  those  who  were  then  talking  up  "the  state  of 
nature,"  "inalienable  rights"  and  "explicit  contract,"  in 
Rousseau's  sense,  he  made  the  suggestion:  "That  which  the 
Lockians  ought  to  have  said  is  probably  to  this  effect,  that, 
tho'  it  be  absurd  to  suppose  that  civil  government,  in 
general,  took  its  rise  from  previous  conventions,  and  mutual 

™  Correspondence,  edited  by  C.  W.  Earle  Fitzwilliams  and  Sir  E.  Bourke, 
1884. 


138  STATE  AND  CHURCH 

Stipulations  actually  entered  into  between  Party  and  Party, — 
and  tho',  whenever  such  a  contract  as  here  supposed  did 
take  place,  at  smne  very  extraordinary  conjuncture, —  (a  con- 
tract, by  the  by,  which  could  only  bind  the  contracting  parties:) 
— yet  as  civil  government  in  general  is  in  reality  a  public  trust, 
be  the  origin,  and  the  form  of  it  whatever  they  may ; — there 
must  be  some  covenant  or  other,  supposed  or  implied,  as  a  con- 
dition necessarily  annexed  to  every  degree  of  discretionary 
power,  whether  expressed  or  not.  Had  they  said  only  this, 
they  would  have  exactly  coincided  with  the  ideas  of  a  Quasi- 
Contract  before  mentioned.  Na}^  more,  they  would  have  avoided 
all  those  paradoxes,  which  attend  their  present  system,  and 
render  it  one  of  the  most  mischievous,  as  well  as  ridiculous 
schemes  that  ever  disgraced  the  reasoning  faculties  of  human 
nature."^" 

With  this  passage  in  mind,  it  may  be  interesting  to  call  atten- 
tion to  the  fact  that  Dean  Tucker  supplies  the  instance  of  one 
Whig,  at  least,  who  had  fully  formed  his  opinion  on  the  question 
of  government  before  knowing  definitely  what  "the  judicious" 
Hooker  had  maintained  on  the  subject. '^'^  Besides  the  expres- 
sion Quasi-Contract  is  an  expression  of  Suarez.  As  for  the 
accuracy  of  his  statement,  that  all  constitutional  Whigs  held 
the  doctrine  of  consent  in  this  form,  this  is  fairly  attested  to 
by  the  greatest  of  them.  In  his  Thoughts  in  the  Cause  of  the 
Present  Biscmitents,  Burke  says  clearlj^:  "The  king  is  the 
representative  of  the  people ;  so  are  the  lords ;  so  are  the  judges. 
They  all  are  trustees  for  the  people,  as  well  as  the  commons; 
because  no  power  is  given  for  the  sole  sake  of  the  holder ;  and 

"Edition  of  1781,  p.  139.  In  a  letter  to  W.  Bradford,  1774,  Madison 
says:  "I  was  so  lucky  as  to  find  Dean  Tucker's  tracts  on  my  return  home, 
sent  by  mistake  with  some  other  books  imported  this  springj.  I  have  read 
them  with  peculiar  satisfaction  and  illumination  with  respect  to  the  inter- 
ests of  America  amd  Britain.  At  the  same  time  his  ingenious  and  plausible 
defence  of  parliamentary  authority  carries  in  it  such  defects  and  misrepre- 
sentations, as  to  confirm  me  in  political  orthodoxy — after  the  same  manner 
as  the  specious  arguments  of  Infidels  have  established  the  faith  of  inquir- 
ing Christians."  Works,  Congress  edition,  vol.  I,  p.  17.  This  last  has  no 
reference  to  the  principles  on  government  as  Madison  evidently  concurred 
with  the  Dean  in  that  respect. 

**lUd,  p.  160. 


HISTORY  OF  DEMOCRATIC  THEORY  139 

although  government  certainly  is  an  institution  of  divine 
authority,  yet  its  forms  and  the  persons  who  administer  it,  all 
originate  from  the  people.  "^^ 

But  for  an  adequately  comprehensive  summary  of  the  Whig 
philosophy  of  government,  together  with  a  clear  indication  of 
its  intimate  dependence  on  the  traditional  theory  of  the 
Medieval  scholastic  writers,  we  will  conclude  this  chapter  with 
the  following  rather  lengthy  passage  from  Burke's  Fragments 
of  a  Tract  on  the  Popery  Laws.  **  As  a  law  directed  against  the 
mass  of  the  nation  has  not  the  nature  of  a  reasonable  institution, 
so  neither  has  it  the  authority:  for,  in  all  forms  of  government 
the  people  is  the  true  legislator;  and  whether  the  immediate 
and  instrumental  cause  of  the  law  be  a  single  person  or  many, 
the  remote  and  efficient  cause  is  the  consent  of  the  people,  either 
actual  or  implied ;  and  such  consent  is  absolutely  essential  to  its 
validity.  To  the  solid  establishment  of  every  law,  two  things 
are  essentially  requisite :  first  a  proper  and  sufficient  human 
power  to  declare  and  modify  the  matter  of  the  law ;  and  next, 
such  a  fit  and  equitable  constitution  as  they  have  a  right  to  de- 
clare and  render  binding.  With  regard  to  the  first  requisite, 
the  human  authority,  it  is  their  judgment  they  give  up,  not  their 
right.  The  people  indeed  are  presumed  to  consent  to  whatever 
the  legislature  ordains  for  their  benefit;  and  they  are  to 
acquiesce  in  it,  though  they  do  not  clearly  see  into  the  propriety 
of  the  means  b}^  which  they  are  conducted  to  that  desirable  end. 
This  they  owe  as  an  act  of  homage  and  just  deference  to  a 
reason  which  the  necessity  of  government  has  made  superior 
to  their  own.  But  though  the  means,  and  indeed  the  nature  of  a 
public  advantage,  may  not  always  be  evident  to  the  understand- 
ing of  the  subject,  no  one  is  so  gross  and  stupid  as  not  to  dis- 
tinguish between  a  benefit  and  an  injury.  No  one  can  imagine 
then,  an  exclusion  of  a  great  body  of  men,  not  from  favors, 
privileges  and  trusts,  but  from  the  common  advantages  of 
society,  can  ever  be  a  thing,  intended  for  their  good,  or  can 
ever  be  ratified  by  any  implied  consent  of  theirs.  If  therefore,  at 
least  an  implied  human  consent  is  necessary  to  the  existence  of 
a  law,  such  a  constitution  cannot  in  propriety  be  a  law  at  all. 

"  Works,  vol.  II,  p.  50. 


140  STATE  AND  CHURCH 

**But  if  we  could  suppose  that  such  a  ratification  was  made, 
not  virtually,  but  actually;  by  the  people,  not  representatively, 
but  even  collectively,  still  it  would  be  null  and  void.  They  have 
no  right  to  make  a  law  prejudicial  to  the  whole  community, 
even  though  the  delinquents,  in  making  such  an  act,  should  be 
themselves  the  chief  sufferers  by  it ;  because  it  would  be  made 
against  the  principle  of  a  superior  law,  which  it  is  not  in  the 
power  of  any  community,  or  of  the  whole  race  of  man,  to  alter — 
I  mean  the  will  of  him  who  gave  us  our  nature,  and  in  giving, 
impressed  an  invariable  law  upon  it.  It  would  be  hard  to  point 
out  any  error  more  truly  subversive  of  all  the  order  and  beauty, 
of  all  the  peace  and  happiness  of  human  society,  than  the 
position  that  any  body  of  men  have  a  right  to  make  what  laws 
they  please;  or  that  laws  can  derive  any  authority  from  their 
institution,  merely  and  independent  of  the  quality  of  the  subject 
matter.  No  argument  of  policy,  reason  of  State,  or  preservation 
of  the  constitution,  can  be  pleaded  in  favor  of  such  a  practice. 
They  may  indeed  impeach  the  frame  of  that  constitution ;  but 
can  never  touch  this  immovable  principle.  This  seems  to  be 
indeed  the  doctrine  that  Hobbes  broached  in  the  last  century 
and  which  was  then  so  frequently  and  so  ably  refuted.   .    .    . 

''In  reality  there  are  two,  and  only  two,  foundations  of  law; 
and  they  are  both  of  them  conditions  without  which  nothing 
can  give  it  any  force;  I  mean  equity  and  utility.  "With 
respect  to  the  former,  it  grows  out  of  the  great  rule  of  equality, 
which  is  grounded  upon  our  common  nature,  and  which  Philo, 
with  propriety  and  beauty,  calls  the  mother  of  justice.  All 
human  laws  are,  properlj^  speaking,  only  declaratory ;  they  may 
alter  the  mode  and  application,  but  have  no  power  over  the 
substance  of  original  justice.  The  other  foundation  of  law 
which  is  utility,  musi:  be  understood,  not  of  partial  or  limited, 
but  of  general  and  public  utility,  connected  in  the  same  manner 
with,  and  derived  directly  from,  our  rational  nature;  for  any 
other  utility  may  be  the  utility  of  a  robber,  but  cannot  be  that 
of  a  citizen,  the  interest  of  the  domestic  enemy,  and  not  that  of 
a  member  of  the  commonwealth."  Burke  then  quotes  Cicero 
and  the  Roman  Jurist  Paulus  against  the  Penal  Laws,  and  con- 
tinues:    ''It  would  be  far  more  easy  to  heap  up  authorities 


HISTORY  OF  DEMOCRATIC  THEORY  141 

on  this  article,  than  to  excuse  the  prolixit}^  and  tediousness  of 
producing  anj^  at  all  in  proof  of  a  point  which,  though  too 
often  practically  denied,  is  in  its  theory  almost  self-evident. 
For  Suarez,  handling  this  very  question,  utruni  de  ratione  et 
suhstantia  Legis  esse,  ut  propter  cutnmune  honum  feratur,  does 
not  hesitate  a  moment,  finding  no  ground  in  reason  or  authority, 
to  render  the  affirmative  in  the  least  degree  disputable;  in 
questions  ergo  proposita  (says  he)  nulla  est  inter  auctores  con- 
traversia;  sed  omnium  commune  est  axioma,  de  substantia  et 
ratione  legis  esse,  ut  pro  comniimi  hono  feratur;  ita  ut,  propter 
Ulud  praecipue  tradatur;  having  observed  in  another  place, 
contra  oninem  rectitudinem  est,  honum  commune  ad  privatum 
ordinare,  sen  totum,  ad  partem  propter  ipsam  referre." 

In  view  of  what  has  been  previously  shown  this  passage  from 
Burke,  on  analysis,  will  be  found  to  contain  a  perfect  digest  of 
all  that  was  characteristic  of  Medieval  theory  on  government 
and  law.  But  not  only  this,  it  also  gives,  in  one  clear  state- 
ment, the  grounds  on  which  we  parted  from  England  and  the 
principles  upon  which  our  Constitution  was  reared.  And  it  is 
worth  noting  that  the  man  who  wrote  the  Reflections  on  the 
French  Revolution,  also  said,  in  a  private  letter :  ' '  I  am  afraid 
that  the  American  aflOairs  will  be  settled,  and  the  fate  of  that 
great  portion  of  the  world  decided,  in  a  manner  very  dififerent 
from  what,  I  am  sure,  we  join  in  wishing.  There  has  been 
too  much  disposition,  from  the  beginning,  to  solve  all  these 
questions  by  force.  I  do  not  as  yet  find  this  disposition  greatly 
altered  by  time  or  by  events;  and  it  is  but  too  probable  that  if 
America  should  ever  be  established  in  a  state  of  freedom,  she 
will  owe  that  liberal  settlement  to  her  separation  from  this 
country.  "^^ 

Appendix 

It  should  be  noted  that  Selden  and  Cudworth  each  take  into 
consideration  only  one  portion  of  what,  in  the  scholastic  system, 
is  constitutive  of  the  natural  law.  Selden,  moreover,  still  shows 
something  of  the  influence  of  the  Protestant  notion  of  ' '  personal 

"Correspondence,  vol.  II,  p.  311. 


142  STATE  AND  CHURCH 

inspiration,"  in  that  he  understands  conscience  to  be  the  "voice 
of  God"  in  a  literal  sense.  His  concern  was  to  state  the  fact 
and  source  of  obligation.  In  this  he  was  followed  later  by 
Butler,  and  by  those  who  may  be  called  the  subjective 
intuitionists,  among  whom  should  be  numbered  Kant,  and  his 
followers.  Cudworth,  on  the  other  hand,  was  taken  up  with 
the  quest  of  that  which  formed  the  basis  for  deciding  between 
right  and  wrong.  As  metaphysics  became  neglected,  this 
problem  gradually  devolved'  into  the  empiricism  of  the  Utili- 
tarians who,  on  the  basis  of  what  was  seen  to  be  expedient, 
supplied  something  of  a  reasonable  ground  for  judging  what 
should  be  done,  but  could  give  no  satisfactory  ultimate  account 
as  to  the  why. 

Of  the  subjective  intuitionists  J.  S.  Mill  wrote  very  truly: 
"The  notion  that  truths,  external  to  the  mind,  may  be  known 
by  intuition  or  consciousness  independently  of  observation  and 
experience,  is,  I  am  persuaded,  in  these  times,  the  great  intel- 
lectual support  of  false  doctrines  and  bad  institutions.  By 
the  aid  of  this  theory,  every  inveterate  belief  and  every  intense 
feeling,  of  which  the  origin  is  not  remembered,  is  enabled  to 
dispense  with  the  obligation  of  justifying  itself  by  reason,  and 
is  erected  into  its  own  all-sufficient  voucher  and  justification. 
There  never  was  such  an  instrument  devised  for  consecrating 
all  deep-seated  prejudices.  And  the  chief  strength  of  this  false 
philosophy  in  morals,  politics  and  religion,  lies  in  the  appeal 
which  it  is  accustomed  to  make  to  the  evidence  of  mathematics 
and  of  cognate  branches  of  physical  science"  (Autobiography, 
chap.  VII.). 

Lecky,  on  the  other  hand,  in  his  History  of  European  Morals, 
draws  an  interesting  outline  of  both  schools  with  their  contrasts. 
"The  two  rival  theories  of  morals"  says  he  "are  known  by 
many  names  and  are  subdivided  into  many  groups.  One  of 
them  is  generally  described  as  the  stoical,  the  intuitive,  the 
independent  or  the  sentimental,  the  other  as  the  epicurean,  the 
inductive,  the  ultilitarian  or  the  selfish.  The  moralists  of  the 
former  school,  to  state  their  opinion  in  the  broadest  form,  believe 
that  we  have  a  natural  power  of  perceiving  that  some  qualities, 
such  as  benevolence,  chastity,  or  veracity,  are  better  than  others, 


HISTORY  OF  DEMOCRATIC  THEORY  143 

and  that  we  ought  to  cultivate  them,  and  to  repress  their  oppo- 
sites.  In  other  words,  they  contend,  that  hy  the  constitution 
of  our  nature,  the  notion  of  right  carries  with  it  a  feeling  of 
ohligation;  that,  to  say  a  course  of  conduct  is  our  duty,  is, 
in  itself,  and  apart  from  all  consequences,  an  intelligible  and 
sufficient  reason  for  practising  it;  and  that  we  derive  the  first 
principles  of  our  duties  from  intuition.  The  moralist  of  the 
opposite  school  denies  that  we  have  any  such  natural  perception. 
He  maintains  that  we  have  by  nature  absolutely  no  knowledge 
of  merit  and  demerit,  of  the  comparative  excellence  of  our 
feelings  and  actions,  and  that  we  derive  these  notions  solely 
from  an  observation  of  the  course  of  life  which  is  conducive 
to  human  happiness.  That  which  makes  actions  good  is,  that 
they  increase  the  happiness  or  diminish  the  pains  of  mankind. 
That  which  constitutes  their  demerit  is,  their  opposite  tendency. 
To  procure  "that  greatest  happiness  of  the  greatest  number" 
is  therefore  the  highest  aim  of  the  moralist,  the  supreme  type 
and  expression  of  virtue."     (Pages  2,  3.) 

Then  some  few  pages  further  on,  the  same  author  states 
what  is,  in  truth,  the  real  root  of  the  problem,  though  he  refrains 
from  any  attempt  at  solving  it  himself.  He  says :  "A  theory 
of  morals  must  explain,  not  only  what  constitutes  a  duty,  but 
also  how  we  obtain  the  notion  of  there  being  such  a  thing  as  duty. 
It  must  tell  us  not  merely  what  is  the  course  of  conduct  we 
ought  to  pursue,  but  also  what  is  the  meaning  of  the  word 
'ought,'  and  from  what  source  we  derive  the  idea  it  expresses." 

Now,  unlike  either  of  the  two  schools  outlined  above,  the 
Scholastic  conception  of  the  natural  law  includes  both  the 
objective  and  the  subjective,  and  may  be  briefly  defined  thus: 
"The  natural  law  is  the  objective  content  of  the  intellect  repre- 
senting, by  its  natural  tendency,  the  proper  interrelation  of  the 
elements  of  the  universe  and  that  due  order,  to  which  the  will 
ought  to  conform  in  consequence  of  the  contingency  of  the 
whole. 

Explanation  of  Terms. 

The  objective  cojitent  of  the  intellect  representing;  that  is 
to  say  it  exists  in  a  judgment.    Suarez  De  Legibus  II,  c.  5,  n.  14. 


144  STATE  AND  CHURCH 

By  its  natural  tendency  means  that  the  intellect  left  to  itself 
is  not  free;  it  sees  or  it  does  not.  Hence,  the  will  should  not 
interfere  except  there  be  ulterior  evidence,  present  to  the  mind, 
of  the  prudence  of  such  action  on  its  part,  in  which  case  alone, 
it  is  allowable,  i.  e.,  not  contrary  to  the  nature  of  either  faculty. 

Proper  interrelation,  i.  e.,  relations  founded  in  the  nature  of 
things. 

Due  order,  i.  e.,  the  order  demanded  by  the  nature  and  in- 
trinsic purpose  of  things  when  subject  to  the  disposal  of  our 
free  will. 

Ought  to  conform:  that  is  to  say,  there  is  the  obligation  or 
moral  necessity,  so  to  dispose  of  things  as  not  to  contradict 
the  true  nature  and  purpose  of  their  being,  but  to  establisli 
them,  rather,  in  such  order  as  their  respective  natures  and 
proper  ends  will  allow,  in  so  far  as  this  is  ideally  present  to 
the  mind. 

Contingency  of  the  whole,  means  that  this  obligation  is  seen 
to  arise  from  the  non-neces'sary  existence  of  things'  in  the  uni- 
verse, which  necessarily  argues  the  will  of  One  who  established 
it,  and  who,  having  the  right  to  exact,  must  also  intend  that  we 
should  conform  to  His  will  thus  manifested  by  the  natural  light 
of  reason,  since  the  purpose  of  our  being,  as  that  of  all  existing 
things,  is  and  can  be  none  other  than  Himself. 


6.     MODERN    "PRACTICAL   LIBERTY"   AND    COMMON 

SENSE 

By  Rev.  Moorhouse  F.  X.  Millar,  S.J. 

"Liberty"  said  Carlyle  "needs  new  definition."  Yet  new 
definitions  have  not  been  wanting  either  in  number  or  variety. 
His  own  whereby  the  true  liberty  of  man  is  made  to  consist 
"in  his  finding  out  or  being  forced  to  find  out  the  right  path, 
and  walk  thereon,"^  is,  if  not  new,  at  least  far  more  popular 
than  it  was  in  his  day;  but  for  effective  application  it  calls 
for  a  Metternich  or  a  Bismarck.  /<juizot,  on  the  other  hand, 
maintained  that  "the  right  to  liberty,  in  the  relations  of  man 
with  man,  is  derived  from  the  right  to  obey  nothing  that  is  not 
reason'^  which  certainly  would  sound  reasonable  enough  if  we 
could  forget  what  Guizot  and  the  nineteenth  century  took  the 
word  reason  to  mean.  Mazzini  with  eloquent  dogmatism  pro- 
claimed liberty  to  be  "the  right  and  duty  of  the  human  soul" 
and  after  some  twenty  years  of  agitation  limited  this  article 
of  political  faith  with  the  declaration  that  "man  has  no  rights 
from  nature,  save  only  one  right  of  liberating  himself  from 
every  obstacle  impeding  his  free  fulfilment  of  his  own  duties."^ 
Finally,  lest  the  import  of  the  word  duty  be  here  misconstrued, 
we  have  Lord  Acton  to  tell  us  "By  liberty  I  mean  the  assurance 
that  every  man  shall  be  protected  in  doing  what  he  believes  his 
duty  against  the  influence  of  authority  and  majorities,  custom 
and  opinion."*  What  wonder  if  through  fear  lest  individuals 
be  led  more  and  more  to  allow  themselves  the  benefit  of  every 
doubt  legitimate  or  otherwise  against  all  due  or  established 
order   of  things,   statesmen   and  lawyers  should  revert  to  the 

*  Past  and  Present,  Book  III,  ch.  XIII. 

'History  of  the  Origin  of  Representative  Government   (1861),  p.  349. 
•Essays  by  Mazzini:    Camelot  Series,  pp.  229,  308. 
'History  of  Freedom  and  Other  Essays,  p.  3. 

145 


146  STATE  AND  CHURCH 

philosoph}^  of  Hobbes  as  modernized  in  Austin  and  claim  with 
the  latter  that  "political  or  civil  liberty  is  the  liberty  from  legal 
obligation,  which  is  left  or  granted  by  a  sovereign  government 
to  any  of  its  own  subjects;  and  that  since  the  power  of  govern- 
ment is  incapable  of  legal  limitation,  the  government  is  legally 
free  to  abridge  their  political  liberty  at  its  own  pleasure  or 
discretion."^ 

But  meanwhile  a  set  of  masculine  thinkers  "little  inclined  to 
the  course  of  changing  about  with  every  wind,  without  regard 
to  men  or  things"  had  already  faced  the  problem  of  liberty 
squarely.     Burke,   the  greatest    among  them,   did   but   express 
their  common  stand  when  in  a  private  letter  to  Mons.  Dupont 
to  wbom  the  Reflections  an  the  French  Revolution  were  later 
addressed,  he  said  "of  all  the  loose  terms  in  the  world  liberty 
is  the  most  indefinite.     It  is  not  solitary,  unconnected,  individ- 
ual, selfish  liberty,  as  if  every  man  was  to  regulate  the  whole 
of  his  conduct  by  his  own  will.   /The  liberty  I  mean  is  social 
freedom.     It  is  that  state  of  things  in  which  liberty  is  secured 
by  equality  of  restraint.     A  constitution  of  things  in  which  the 
liberty  of  no  one  man,  and  no  body  of  men,  and  no  number  of 
men  can  find  means  to  trespass  on  the  liberty  of  any  person, 
or  any   description   of  persons,   in  the   society.     This  kind   of 
liberty,   is,   indeed,   but   another  name  for  justice;  ascertained 
by  wise  laws,  and  secured  by  well-constructed  institutions.     I 
am  sure  that  liberty,  so  incorporated,  and  in  a  manner  identified 
with  justice,  must  be  infinitely  dear  to  every  one  who  is  capable 
of  conceiving  what  it  is.  ^ut  whenever  a  separation  is  made 
between  liberty  and  justice,  neither  is,  in  my  opinion  safe./'° 
That  this  was  nothing  more  nor  less  than  the  philosophy  of 
government  that  had  already  been  embodied  in  our  owji  Constitu- 
tion at  the  time  these  words  were  written  will  only  sound  strange 
to   those   who   have   never   studied   the  writings   of    Hamilton, 
Madison,   or  James  Wilson,   or  who  having  read  more   recent 
works  on  our  particular  form  of  government  saw  no  need  of 
devoting  attention  to  the  debates  in  the  State  conventions  that 
led  to  its  adoption.     Nor  is  the  fact  that  this  statement  comes 

/  •  Lectures  on  Jurisprudence,  edited  by  E.  Campbell,  p.  159. 
'Correspondence,  vol.  I,  p.  312. 


"PRACTICAL  LIBERTY"  AND  COMMON  SENSE     147 

from  Burke  without  its  significance  for  the  proper  understand- 
ing of  the  genuine  American  concept  of  liberty.  Because  he 
opposed  the  French  Revolution  it  has  been  generally  assumed 
that  he  suddenly  turned  Tory.  Yet  in  the  same  letter  from 
which  the  above  is  taken  he  distinctly  asserts  "If  this  real 
practical  liberty,  with  a  government  powerful  to  protect,  im- 
potent to  evade  it,  be  established,  or  is  in  a  fair  train  of  being 
established  in  the  democracy,  or  rather  collection  of  democracies, 
which  seem  to  be  chosen  for  the  future  frame  of  society  in 
France,  it  is  not  my  having  long  enjoyed  a  sober  share  of 
freedom,  under  a  qualified  monarchy,  that  shall  render  me  in- 
capable of  admiring  and  praising  your  system  of  republics. 
I  should  rejoice  even  though  England  should  be  reckoned  only 
as  one  among  the  happy  nations,  and  should  no  longer  retain 
her  proud  distinction,  her  monopoly  of  fame  for  a  practical 
constitution,  in  which  the  grand  secret  had  been  found,  of 
reconciling  a  government  of  real  energy  for  all  foreign  and 
all  domestic  purposes,  with  the  most  perfect  security  to  the 
liberty  and  safety  of  individuals.  The  government,  whatever 
its  name  or  form  may  be,  that  shall  be  found  substantially 
and  practically  to  unite  these  advantages,  will  most  merit  the 
applause  of  all  discerning  men."'^  Nothing,  certainly,  written 
in  direct  commendation  of  our  own  Constitution  could  be  more 
apt;  and  the  fact  that  it  was  on  such  ground  that  Burke  con- 
demned the  French  Revolution  shows  clearly  that  not  only 
could  he  still  say  with  sincerity  and  truth  as  he  had  written 
nine  years  before:  "If  I  know  anything  of  myself,  I  have 
taken  my  part  in  political  connections  and  political  quarrels, 
for  the  purpose  of  advancing  justice  and  the  dominion  of 
reason;"^  it  points  to  the  further  much  more  important  fact 
that  Burke  and  the  leaders  among  the  Whigs  generally  both  in 
England  and  Scotland  and  in  the  United  States  and  newly 
independent  colonies  attached  a  far  more  definite  meaning  to 
the  words  reason,  justice  and  liberty  than  has  been  the  case 
since  the  days  when  the  French  threw  the  world  into  confusion 

'  Ibid.,  vol.  Ill,  p.  106. 
"  Ibid.,  p.  112. 


148  STATE  AND  CHURCH 

with  what  Carlyle  very  properly  calls  their  ' '  Gospel  according 
to  Jean  Jacques." 

In  consequence  of  our  Revolution  and  the  spirit  it  engendered, 
the  distinction  between  freedom  from  tyranny  so  soundly  pro- 
claimed in  the  Declaration  of  Independence  and  the  sort  of 
liberty  solidly  established,  by  our  Constitution,  was  very  largely 
lost  sight  of  by  the  popular  mind.  This,  assisted  in  no  small 
degree  by  some  of  the  party  tactics  of  Jetferson  and  his  follow- 
ers, naturally  enough  opened  the  door  wide  to  the  introduction 
of  a  large  measure  of  this  evil  and  wholly  alien  influence.  The 
result  has  been  that  those  who  write  on  this  subject  still  persist 
in  identifying  the  ethical  and  historical  language  of  the  Declara- 
tion of  Independence  with  the  mere  metaphysical  assertions  of 
the  French  Declaration  of  the  Rights  of  Man.  Englishmen  such 
as  Sir  Henry  Maine,''  David  G.  Ritchie^"  and  Viscount  Bryce^^ 
have  not  been  slow  to  foster  this  apprehension  but  it  is  now  high 
time  that  we  dispense  with  any  further  English  assistance  in 
the  interpretation  of  our  constitutional  history.  The  fact  is 
that  there  is  scarcely  a  point,  certainly  no  important  point  in 
the  Declaration  as  penned  by  Jeiferson  that  had  not  been  previ- 
ously laid  down  in  almost  identical  language  by  James  Wilson 
in  his  Consideratimis  mi  the  Nature  and  Extent  of  the  Legis- 
lative Authority  of  the  British  Parliament  (1774)  and  in  his 
Speech  in  the  Convention  for  the  Province  of  Pennsylvania 
(1775)^2  and  if  there  was  a  man  in  the  colonies  at  the  time 
who  knew  his  own  mind  and  was  free  from  anything  like 
French  rationalistic  and  romantic  tendencies  it  was  assuredly 
Wilson.  Moreover,  while  the  French  Declaration  directly  in- 
tended to  wipe  away  the  past  in  the  wild  hope  that  human 
nature  needed  only  to  be  fed  on  metaphysical  pseudo-scientific 
jargon  in  order  to  bring  about  a  mathematically  ordered  society; 
there  was  not  one  among  those  who  signed  our  Declaration  or 
took  part  in  the  Federal  convention  hut  would  have  subscribed 
to  the  words  in  which  Joseph  De  Maistre  declared  ''One  of  the 

"Ancient  Law   (1887),  Am.  ed.  ch.  IV,  p.  91. 
"Natural  Rights  (1895),  ch.  I,  p.  5. 
"  Modern  Democracies,  vol.  I,  p.  43. 
"  Works,  vol.  II,  pp.  505-565. 


"PRACTICAL  LIBERTY"  AND  COMMON  SENSE     149 

great  errors  of  a  century  that  professed  all  of  them,  was  the 
belief  that  a  political  constitution  could  be  written  and  created 
a  priori,  whereas  reason  and  experience  unite  in  es9tablishing 
the  fact  that  a  constitution  is  a  work  of  Providence  and  that 
what  is  most  fundamental  and  most  essentially  consi;itutional  in 
the  laws  of  any  nation  cannot  be  written  down  in  words.  "^^ 

But  here  again  is  there  need  of  obviating  a  number  of  mis- 
conceptions. Owing  to  the  hostility  long  felt  for  England  a 
singular  silence  has  prevailed  even  up  to  the  present  on  the 
whole  question  of  the  sources  whence  the  political  ideas  and 
principles  embodied  in  our  Constitution  were  actually  derived. 
Many  spoke  of  it  as  though  it  were  in  every  part  nothing  more 
than  the  voluntary  creation  of  man.  More  recently,  however, 
public  opinion  has  been  gradually  awakening  to  the  fact  that 
the  American  Constitution  was  in  reality  "a  reaffirmation  of 
principles  already  American  by  hereditary  usage  or  long- 
established  custom."^*  As  James  Russell  Lowell  has  said  the 
framers  of  our  Constitution  "were  not  seduced  by  the  French 
fallacy  that  a  new  system  of  government  could  be  ordered  like 
a  new  suit  of  clothes.  They  would  as  soon  have  thought  of 
ordering  a  new  suit  of  flesh  and  skin.  It  is  only  on  the  roaring 
loom  of  time  that  the  stuff  is  woven  for  such  a  vesture  of  their 
thought  and  experience  as  they  were  meditating.  They  recog- 
nized fully  the  value  of  tradition  and  habit  as  the  great  allies 
of  permanence  and  stability."''  This  is  of  course  of  very  great 
importance  for  anything  like  a  practical  appreciation  of  our 
Constitution.  It  is  important  to  realize  that  the  Fathers  were 
guided  by  experience  and  that  in  consequence,  as  Sir  Henry 
Maine  put  it,  "The  Constitution  of  the  United  States  is  colored 
throughout  by  political  ideas  of  British  origin. "'«  But  there 
is  grave  danger  at  present,  especially  in  certain  educational 
quarters  of  this  country,  lest  some,  with  the  lingering  disposition 
of  a  provincial  towards  what  was  once  the  Mother  countrj% 
should  be  inclined  to  stress  the  learned  ignorance  of  Englishmen 

I 

"  Essai  sur  le  Principe  Generateur  des  Constitutions  Politiques,  p.  1. 

"C.  E.  Stevens,  Sources  of  the  Constitution  of  the  United  States,  p.  53. 

"  Democracy. 

"Popular  Government  (1886),  p.  207. 


150  STATE  AND  CHURCH 

in  this  matter  and  forget  the  warning  of  Hamilton  when  he  said 
"Many  mistakes  have  arisen  from  fallacious  comparisons  be- 
tween our  government  and  theirs.  "^^  For  one  thing  those  who 
framed  our  Constitution  did  not  believe  in  the  "historic 
method""  of  Sir  Henry  Maine  and  the  modern  English  Austini- 
ans.  They  knew  their  English  history  and  the  history  of  Eng- 
lish law  and  of  the  English  Constitution  better  than  any  similar 
body  of  men  in  England  in  their  day  and  what  is  more  they 
understood  certain  vital  points  in  that  history  better  than  some 
of  those  who  are  engaged  in  rewriting  it  in  England  now,  along 
the  lines  of  muddle-headed  Austinian  assumptions.  Burke 
described  the  actual  practice,  if  not  the  conscious'ly  uttered  theory 
of  every  constitutional  Whig,  when  writing  to  the  Bishop  of 
Chester  he  said  "My  opinion  of  the  truth  or  falsehood  of  facts 
related  in  history  is  formed  on  the  common  rules  of  criticism: 
my  opinion  of  characters,  on  those  rules  and  the  common  prin- 
ciples of  morality."  "History  is  a  preceptor  of  prudence,  not 
of  principles.  The  principles  of  true  politics  are  those  of  moral- 
ity enlarged;  and  I  neither  now  do,  nor  ever  will,  admit  any 
other."  "The  principles  that  guide  us  in  public  and  in  private, 
as  they  are  not  of  our  devising,  but  moulded  into  the  nature 
and  essence  of  things,  will  endure  with  the  sun  and  moon, — 
long,  very  long  after  Whig  and  Tory,  Stuart  and  Brunswick, 
and  all  such  miserable  bubbles  and  playthings  of  the  hour,  are 
vanished  from  existence  and  from  memory.  "^°  Christopher  J. 
Tiedman,  well  known  for  his  little  book  The  Umuritten  Constitu- 
tion of  the  United  States,  and  who  may  be  taken  as  representa- 
tive of  the  many  in  this  country  that  have  gone  over  bag  and 
baggage  to  the  modern  English  way  of  thinking  goes  so  far 
as  to  say  that  in  the  early  days  of  our  national  life  "little  was 

"Speech  on  the  Constitution  June  21,  1788.  Works,  Federal  edition,  vol. 
II,  p.  33. 

"  This  consists  in  drawing^  inductive  conclusions  from  a  wide  investigation 
of  past  historic  facts  without  any  reference  to  the  bad  or  good,  true  or 
false  in  human  actions  or  thoughts,  which  is  about  as  sensible  as  for  a  sea 
captain  to  set  out  without  chart  or  compass  or  any  concern  for  the  fixed 
points  in  the  heavens  and  expect  to  reach  his  destination  by  merely  watch- 
ing the  wake  of  the  ship. 

"  Correspondence,  vol.  I,  pp.  331,  332,  333. 


"PRACTICAL  LIBERTY"  AND  COMMON  SENSE     151 

thought  of  those  'iglittoririg  generalities,'  as  they  were  called, 
which  made  it  a  part  of  our  constitutional  law  that  man  is 
possessed  of  certain  inaliena'ble  rights,  that  cannot  be  denied 
to  him  by  government,  and  which  denied  to  government  the 
power  to  do  more  than  to  prevent  the  infliction  of  injuries  upon 
others."""  Yet  here  again  Burke  by  way  of  anticipation  had 
already  provided  the  answer.  He  is  speaking  of  course  of  the 
Revolution  of  1688  but  his  words  apply  equally  to  ours.  "A 
man  who  condemns  the  revolution,  has  no  longer  any  obnoxious 
persons  to  hang  his  principles  on,  and  therefore,  he  and  they 
may  be  made  but  too  convenient  to  the  executive  powers  of  the 
time: — but,  for  this  reason,  he  is  much  more  dangerous  than 
formerly  to  the  constitution  and  liberties  of  his  country.  Let 
me  add  further,  that  a  man  who  praises  the  fact  of  the  revolu- 
tion, and  abandons  its  principles, — substituting  the  instrumental 
persons  and  establishments  consequential  to  that  event,  in  the 
place  of  its  ends,  is  as  bad  as  the  former.  To  me,  indeed,  he 
seems  to  be  infinitely  worse,  as  he  can  have  no  sound  moral 
principles  of  any  kind,  nor  be  a  fit  servant  for  honest  govern- 
ment in  any  mode  whatever.  The  one  has  lost  his  attachment, 
the  last  has  deserted  his  principles  and  the  last  is  by  far  the 
most  eulpable  and  the  most  dangerous."^- 

Whatever  may  be  thought  of  those  who,  through  conflicting 
principles  or  the  want  of  any,  later  put  the  Constitution  to  the 
proving  test  only  to  display  the  more  clearly  the  saving  elastic- 
ity and  consistency  of  its  texture,  the  all  important  question 
of  the  principles  upon  which  it  was  formed  has  been  sadly  mis- 
interpreted in  the  past,  and  at  present  has  come  to  be  almost 
wholly  overlooked.  Of  those  who  framed  it  we  are  told  that 
"they  had  a  profound  disbelief  in  theory,  and  knew  better  than 
to  commit   the  folly  of  breaking  with  the  past""  as  though 

"°  P.  79.  The  last  part  of  this  statement  expresses  Locke  's  idea  but  not 
that  of  the  framers  of  our  Constitution. 

^  Ibid.,  p.  335,  speaking  on  the  reform  of  representation,  Burke  also 
said :  ' '  Whenever  I  speak  against  theory,  I  mean  always  a  weak,  erroneous, 
fallacious,  unfounded  or  imperfect  theory:  and  one  of  the  ways  of  discov- 
ering that  it  is  a  false  theory,  is  by  comparing  it  with  practice."  Works, 
vol.  Ill,  p.  357.     Oxford  Univ.  Press  edition. 

"  Democracy. 


152  STATE  AND  CHURCH 

theory  and  experience  were  wholly  incompatible.  Or  again 
how  often  have  we  not  heard  it  repeated  that  these  same  men 
"cared  less  ahout  political  theory  than  about  good  government" 
as  if  government  of  any  kind  did  not  necessarily  imply  and  pre- 
suppose a  corresponding  theory.  The  modern  method  of  tinker- 
ing with  things  established  on  the  basis  of  mere  expediency  in 
the  thought-saving  belief  that  progress  and  civilization  is  "all 
of  a  piece  with  the  development  of  an  embryo  or  the  unfolding 
of  a  flower"-*  might  be  all  very  well  for  the  rustic  in  Horace 
who  sat  by  the  river  bank  waiting  for  the  stream  to  flow  by  in 
the  hope  of  crossing  without  wetting  his  feet,  or  it  may  even 
satisfy  a  certain  type  of  Englishman  who  like  a  Roman  of  the 
fourth  century  can  pursue  his  own  selfish  ends  and  watch  an 
empire  go  to  pieces  in  the  superstitious  conviction  that  what  is 
eternal  cannot  be  in  need  of  human  thought  or  private  endeavor. 
But  those  who  gave  us  our  Constitution  knew  better.  In  the 
first  place  they  were  Whigs.  As  Jefferson  said  "Before  the 
Revolution  we  were  all  good  English  Whigs,  cordial  in  their 
free  principles,  and  in  their  jealousies  of  their  executive  magis- 
trate"^^ and  Hamilton  testified  to  the  same  fact  when  in  the 
Letters  from  Phocion  he  said  "The  Spirit  of  Whigism  cherishes 
legal  liberty,  holds  the  rights  of  every  individual  sacred,  con- 
demns or  punishes  no  man  without  regular  trial  and  conviction 
of  some  crime  declared  by  antecedent  laws;  reprobates  equally 
the  punishment  of  the  citizen  by  arbitrary  acts  of  legislation, 
as  by  the  lawless  combination  of  unauthorized  individuals."^^ 
Now  the  one  cardinal  point  in  Whig  philosophy  was  that  there 
were  principles  implicit  in  the  British  Constitution  that  were 
quite  as  essential  and  even  more  important  for  its  proper  work- 
ing than  any  constitutional  forms.  Some  of  these,  as  founded 
in  the  nature  of  man  and  of  things  should,  from  the  necessity 
manifest  to  reason,  form  the  basis  and  articulate  the  structure 
of  every  legitimate  government.  Others  following  as  a  necessary 
consequence  from  the  voluntary  determination  of  the  nation  or 
its  representative  and  rulers  in  the  past  gave  to  government  its 

"Spencer,  Social  Statics  (1892),  p.  32. 
"  Works,  2d  Eandolph  edition,  vol.  I,  p.  65. 
"Loe.  cit.,  vol.  IV,  p.  231. 


"PRACTICAL  LIBERTY"  AND  COMMON  SENSE     153 

distinctive  national  modifications  which  as  part  of  a  constituted 
or  estahlished  order  admitted  of  all  reasonable  reform  and 
improvement  so  long  as  justice  were  done  to  those  whose  rights 
and  interests  happened  to  be  involved  in  the  change.  With 
regard  to  the  first  set  of  principles,  namely  those  founded  in 
natural  law  "it  is,"  as  Burke  said,  "the  part  of  the  speculative 
philosopher  to  mark  the  proper  ends  of  government.  It  is  the 
business  of  the  politician  who  is  the  philosopher  in  action  to 
find  out  proper  means  towards  those  ends,  and  to  employ  them 
with  effect.  "2^  Though  none  of  those  present  at  the  Federal 
Convention  posed  as  speculative  philosophers,  with  the  single 
exception  of  Franklin,  and  while  nearly  all  answered  more  or 
less  elosely  Burke's  definition  of  the  politician,  there  were  three, 
perhaps  even  more  self-effacing  than  the  rest  who  held  the 
clearest  title  to  both  descriptions.  These  were  Madison,  Hamil- 
ton and  Wilson;  and  it  should  be  noted  that  just  as  the  best 
and  most  comprehensive  defense  and  justification  of  the  Consti- 
tution, when  proposed  for  ratification,  came  from  them,  so  also 
was  it  they  who  in  debate  set  forth  the  most  essential  proposals 
and  suggested  the  measures  that  involved  the  closest  and  most 
fundamental  application  of  principles.  Moreover  their  respec- 
tive writings  show  a  wide  and  thorough  acquaintance  with  all 
that  had  been  written  on  government  up  to  their  day.  But 
what,  to  our  knowledge,  has  not  been  sufficiently  remarked  is 
the  fact  that  with  all  their  copious  references  they  are  found 
disagreeing  with  such  authorities  almost  as  often  as  they  are 
discovered  quoting  them  with  approval.  This  of  itself  would 
argue  that  they  themselves  were  in  possession  of  a  definite  phil- 
osoph}'  of  their  own.  But  we  are  not  left  to  mere  conjecture 
in  this  matter. 

Though  little  has  been  said  of  the  influence  and  significance 
of  Scottish  thought  in  the  Colonies  during  this  period  the  facts 
are  such  as  to  speak  for  themselves.  Jefferson  in  his  Memoir 
speaking  of  his  early  education  at  William  and  Mary  College 
says:  "It  was  my  great  good  fortune,  and  what  probably  fixed 
the  destinies  of  my  life,  that  Dr.  William  Small  of  Scotland 
was  then  professor  of  Mathematics,  a  man  profound  in  most 

"  Works,  vol.  II,  p.  82. 


154  STATE  AND  CHURCH 

of  the  useful  branches  of  science,  with  a  happy  talent  for  com- 
munication, correct  and  gentlemanly  manners,  and  an  enlarged 
and  liberal  mind.  He  most  happily  for  me,  became  soon  attached 
to  me,  and  made  me  his  daily  companion  when  not  engaged  in 
the  school ;  and  from  his  conversation  I  got  my  first  views  of 
the  expansion  of  science,  and  of  the  system  of  things  in  which 
we  are  placed"-^  and  Jefferson  then  adds  that  he  gave  regular 
lectures  in  ethics,  rhetoric  and  helles  lettres,  a  point  in  keeping 
with  what  then  formed  the  ambition  of  almost  every  one  who 
took  up  teaching  in  the  schools  and  universities  of  Scotland. 

James  Wilson  was  a  Scotchman  by  birth  who  came  to  this 
country  in  1763  at  the  age  of  twenty-one  after  having  studied 
at  the  universities  of  St.  Andrew,  Glasgow  and  Edinburgh.  At 
the  last  of  these  he  was  a  pupil  of  Hugh  Blair's,  while  at  Glas- 
gow, just  two  years  before  his  emigrating  to  the  Colonies,  the 
''Stalwart  Whig''^"  and  friend  of  Adam  Smith  and  of  Burke, 
John  Millar,^°  began  his  lectures  on  law  and  on  government, 
some  of  which  were  afterwards  embodied  in  a  once  highly 
reputed  work  entitled  Historical  View  of  the  English  Govern- 
ment from  the  Settlement  of  the  Saxons  in  Britain  to  the  Revolu- 
tion of  1688,  and  intended  as  a  Whig  offset  to  the  Tory  History 
of  England  by  Hume.  Moreover  though  Wilson  was  known  as 
"the  best  read  lawyer"  in  the  Federal  Convention  and  although 
the  Marquis  of  Chastellux,  when  in  Philadelphia,  wondered  at 
the  extent  of  his  library  and  the  wide  range  of  his  learning, 
still  his  own  works  show  a  decided  preference  for  the  Scottish 
thinkers  of  the  anti-sceptical  and  non-sentimental  type. 

Madison,  on  the  other  hand,  was  educated  at  Princeton  at  the 

^  Loc.  cit.,  p.  2. 

"Francis  W.  Hirst,  Adam  Smith,  p.  222. 

•"D.  Francis  Jeffrey  said  of  him:  "It  may  afford  a  clearer  conception 
of  his  intellectual  character,  to  say,  that  it  corresponded  pretty  nearly  with 
the  abstract  idea  that  the  learned  of  England  entertain  of  a  Scottish 
philosopher ;  a  personage,  that  is,  with  little  or  no  deference  to  the  authority 
of  great  names,  and  not  very  apt  to  be  startled  at  conclusions  that  seem 
to  run  counter  to  received  opinions  or  existing  institutions;  acute,  sagacious 
and  systematical;  irreverent  towards  classical  literature;  rather  indefati- 
gable in  argument,  than  patient  in  investigation;  vigilant  in  observation 
of  fact,  but  not  so  strong  in  their  number  as  skillful  in  their  application." 
Edinburgh  Eeview,  1803,  vol.  Ill,  p.  156. 


"PRACTICAL  LIBERTY"  AND  COMMON  SENSE     155 

time  when  John  Witherspoon,  who  had  come  over  from  Scotland 
in  1768,  was  president  of  that  college.  The  bearing  of  this  on 
his  development  has  been  pointed  out  by  William  E.  Rives  in  his 
Life  and  Times  of  Madison.  "The  increased  attention  paid  to 
the  study  of  the  nature  and  constitution  of  the  human  mind, 
and  the  improvement  which  had  been  introduced  into  this 
fundamental  department  of  knowledge  by  the  philosophical  in- 
quiries of  his  own  countrjonen  constituted  a  marked  and  most 
important  feature  of  Dr.  Witherspoon 's  reforms.  Mr.  Madison 
formed  a  taste  for  these  inquiries,  which  entered  deeply  .  .  . 
into  the  character  and  habits  of  his  mind,  and  gave  to  his  politi- 
cal writings  in  after  life  a  profound  and  philosophic  cast,  which 
distinguished  them  eminently  and  favorably  from  the  produc- 
tion of  the  ablest  of  his  contemporaries."^'  With  regard  to  the 
inquiries  here  referred  to,  the  occasion  for  them  had  been  fur- 
nished by  the  fact  that  throughout  Scotland  there  had  been  a 
growing  conviction  among  scholars  of  the  previous  generation 
that  the  teachings  of  Shaftesbury  and  Hutcheson  were  sensual- 
izing and  degrading  the  old  philosophy  of  Aristotle  and  of  the 
schoolmen.  As  Witherspoon  himself  said  "As  for  logic,  it  is 
well  known  this  part  of  education  is  fallen  into  great  contempt, 
and  it  is  not  to  he  expected  that  such  brisk  and  lively  spirits 
who  have  alwaj-s  hated  everything  that  looked  scholastic  like, 
can  bear  to  be  tied  down  to  strict  rules  of  argumentation." 
While  elsewhere  dealing  with  the  new  inquiries  he  states  "Some 
late  writers  have  advanced,  with  great  apparent  reason,  that 
there  are  certain  first  principles  or  dictates  of  common  sense 
which  are  either  simple  perceptions  or  seen  with  intuitive  evi- 
dence. These  are  the  foundation  of  all  reasoning,  and  without 
them  to  reason  is  a  word  without  meaning.  They  can  no  more 
be  proved  than  you  can  prove  an  axiom  in  mathematical  science. 
These  authors  of  Scotland  have  lately  produced  and  supported 
this  opinion,  to  resolve  at  once  all  the  refinement  and  metaphysi- 
cal objections  of  some  infidel  writers. "^^ 

This  was  the  philosophy  of  common  sense  which  was  worked 
up  in  Scotland  by  Reid  and  Beattie  in  opposition  to  Hume  and 

"  Vol.  I,  p.  21. 

» J.  McCosh,  The  Scottish  Philosophy,  pp.  185,  188. 


156  STATE  AND  CHURCH 

Berkley,  but  neither  of  these  was  its  real  originator.  The  first 
to  propound  it  in  developed  form  was  the  Jesuit  Buffier  (1661- 
1737)  whose  many  works  were  highly  appreciated  during  the 
eighteenth  century,  while  the  controversies  they  were  intended 
to  meet  were  still  going  on.  Voltaire  praised  some  of  them 
loudly  which,  of  course,  of  itself  signifies  very  little  beyond 
the  fact  that  they  thus  received  rather  wide  advertisement. 
On  the  other  hand  several  articles  in  the  first  Encyclopedia 
contain  whole  pages  literally  copied  from  his  Discours  sur 
V etude  et  la  marche  des  sciences  without  any  acknowledgment 
of  their  real  author.^^  Sir  Joshua  Reynolds,  the  life-long  friend 
of  Edmund  Burke,  in  his  Discourses  adopted  and  illustrated 
the  theory  of  beauty  which  the  Pere  Buffier  had  suggested  ^* 
while  George  Campbell,  principal  of  the  Marishal  College, 
Aberdeen,  was  among  the  first  in  Scotland  to  adapt  his  doctrine 
on  common  sense  to  the  philosophy  of  eloquence.  In  the  well 
known  work  Philosophy  of  Rhetoric,  the  first  outline  of  which 
was  read  in  1757  before  a  private  literary  society  that  included 
Reid  and  Beattie  among  its  members,  Campbell  says  "The  first 
among  the  modems  who  took  notice  of  this  principle,  as  one 
of  the  genuine  springs  of  our  Knowledge,  was  Buffier,  a  French 
philosopher  of  the  present  century,  in  a  book  entitled  Traite  des 
Premieres  Verites:  one  who,  to  an  uncommon  degree  of  acute- 
ness  in  matters  of  abstraction,  added  that  solidity  of  judgment 
which  hath  prevented  in  him,  what  had  proved  the  wreck  of 
many  great  names  in  philosophy,  his  understanding  becoming 
the  dupe  of  his  ingenuity.  This  doctrine  hath  lately  in  our  own 
country,  been  set  in  the  clearest  light,  and  supported  by  invin- 
cible force  of  argument  by  two  very  able  writers  in  the  science 
of  man.  Dr.  Reid  in  his  Inquiry  into  the  Human  Mind  and  Dr. 
Beattie  in  his  Essay  on  the  Immutability  of  Truths." ^^ 

Buffier 's  direct  aim  had  been  to  counteract  the  idealism  of 
Descartes  and  the  sensism  of  Locke  by  showing  that  these  two 
systems  had  been  constructed  on  mere  half-truths  and  that  in 

"Biographic  Universelle  (1812),  Art.  Buffier. 

"Francis  Jeffrey,  Alison  on  Taste — see  his  contributions  to  the  Edin- 
burgh Review,  in  Modern  British  Essayists  (1860). 

"P.  60  (1859),  see  Oeuvres  Philoaophiques  De  Pfere  Buffier,  edited  by 
F.  Bouillier,  1853. 


"PRACTICAL  LIBERTY"  AND  COMMON  SENSE     157 

order  to  lay  the  true  foundation  of  a  sound  and  common  sense 
philosophy  nothing  more  was  required  than  an  accurate  restate- 
ment of  what  both  had  initially  asserted  on  grounds  made  to 
appear  contradictory  but  which  in  reality  were  only  opposite 
yet  essentially  complementary.^"  The  real  significance  of  his 
doctrine  and  of  the  movement  which  his  writings  started, 
especially  among  the  Scotch,  was  clearly  indicated  by  Henry 
Hume  or  Lord  Kaimes  in  Sketches  of  the  Hut  or  y  of  Man  (1774) 
where,  besides  incorporating  a  goodly  number  of  Buffier's  ideas 
into  his  work  as  if  they  were  his  own,  he  says  "I  have  lately 
met  with  a  very  sensible  and  judicious  treatise  wrote  by  Father 
Buffier  about  fifty  years  ago,  concerning  first  principles  and  the 
source  of  human  judgments  which,  with  great  propriety,  he 
prefijxed  to  his  treatise  of  logic.  And  indeed  I  apprehend  it 
is  a  subject  of  such  consequence,  that  if  inquisitive  men  can  be 
brought  to  the  same  unanimity  in  the  first  principles  of  the 
other  sciences,  as  in  those  of  mathematics  and  natural  philosophy 
(and  why  should  we  despair  of  a  general  agreement  in  things 
that  are  self-evident?),,  this  might  be  considered  as  a  third 
grand  era  in  the  progress  of  human  reason.  "^'^ 

This,  of  course,  implied  the  actual  undoing  of  one  of  the  worst 
consequences  of  the  Reformation,  namely,  the  socially  dis- 
ruptive and  centrifugal  tendencies  instilled  into  countless  minda 
by  the  Protestant  doctrines  of  "private  judgment"  and  "per- 

"The  influence  of  this  on  James  Wilson  is  seen  in  the  following  words: 
' '  Frequent, ' '  says  he  in  his  lectures  on  Law,  ' '  and  laborious  have  been  the 
attempts  of  philosophers  to  investigate  the  manner,  in  which  things  external 
are  perceived  by  the  mind.  Let  us  imitate  them  neither  in  their  fruitless 
searches  to  discover  what  cannot  be  known;  nor  in  framing  hypotheses 
which  will  not  bear  the  test  of  reason,  or  of  intuition ;  nor  in  rejecting  self- 
evident  truths,  which,  though  they  cannot  be  proved  by  reasoning,  are 
known  by  a  species  of  evidence  superior  to  any  that  reasoning  can 
produce."     Works,  vol.  I,  p.  215. 

"Vol.  II,  p.  240:  James  Wilson's  attitude  in  this  matter  was  that 
"Despotism,  by  an  artful  use  of  'superiority'  in  politics;  and  scepticism 
by  an  artful  use  of  'ideas'  in  metaphysics,  have  endeavored — and  their 
endeavors  have  frequently  been  attended  with  too  much  success — to  destroy 
all  true  liberty  and  sound  philosophy.  By  their  baneful  effects,  the  science 
of  man  and  the  science  of  government  have  been  poisoned  to  their  very 
fountains.  But  those  destroyers  of  others  have  met  or  must  meet  with 
their  own  destruction."     Works,  vol.  I,  p.  245. 


158  STATE  AND  CHURCH 

sonal  inspiration."  Milton  in  his  Treatise  of  Civil  Power  in 
Ecclesiastical  Causes  had  expressed  something^  of  far  wider 
import  than  any  private  opinion  of  his  own  when  he  declared, 
"I  here  mean  by  conscience  or  religion  that  full  persuasion, 
whereby  we  are  assured,  that  our  belief  and  practice,  as  far  as 
we  are  able  to  apprehend  and  probably  make  appear,  is  accord- 
ing to  the  will  of  God  and  His  Holy  Spirit  within  us,  which 
we  ought  to  follow  much  rather  than  any  law  of  man,  as  not 
only  his  word  everywhere  bids  us,  but  the  very  dictate  of  reason 
(sic)  tells  us."  As  is  quite  plain  and  as  subsequent  forms  of 
Protestantism  have  come  to  admit  practically,  the  "assurance 
of  the  Holy  Spirit"  here  is  nothing  more  than  sentiment  and 
emotion. ^^  Moreover,  the  moral  sense  of  Shaftesbury,  Hutcheson 
and  Hume  is  only  a  modification  of  the  same,  minus  all  assump- 
tions of  the  supernatural  and  with  the  additional  identification 
of  moral  sentiment  with  the  pantheistic  notion  of  the  natural 
law  revived  at  the  Renaissance  from  the  writings  of  the  Stoics^'* 
and  from  the  Roman  jurists.  In  either  case,  what  was  held  to 
be  normative  of  individual  action  necessarily  excluded  all 
ground  for  rational  accord,  seeing  that  sentiment  is  of  its  very 
nature  something  wholly  particular  to  each  one  of  us.  And  it 
was  precisely  because  of  their  adoption  of  Hume's  point  of 
view  in  this  matter  that  Bentham  and  Austin  were  led  to  revive 

"^  Guizot,  himself  a  Calvinist,  accounts  for  the  earlier  Protestant  notion 
of  the  ' '  Holy  Spirit ' '  in  the  following  manner :  ' '  The  birth  of  faith 
especially  if  derived,  without  reflection,  from  natural  belief  that  passes  to  the 
new  state  without  intermediary  knowledge,  often  takes  the  character  of  a 
sudden  revolution  equally  unforeseen  and  obscure  even  to  the  one  effected. 
And  thus  is  it  readily  explained  how  the  thought  of  a  direct  intervention 
on  the  part  of  God  should  be  appealed  to  on  such  an  occasion.  But  this 
idea,  in  the  way  in  which  it  is  commonly  understood  (among  Protestants), 
is  gradually  giving  ground  before  the  more  careful  study  and  better  knowl- 
edge of  the  facts."  Meditations  et  fitudes  Morales:  Quel  est  le  vrai  sens 
du  mot  foi. 

"•  Among  the  earliest  to  revive  this  notion  was  La  Boetie,  the  friend  of 
Montaigne,  in  a  brief  essay  entitled  De  La  Servitude  Volontaire  where 
amidst  much  else  of  a  like  tenor  he  says:  "Le  naturel  de  I'homme  est  bien 
d'estre  franc,  et  de  la  vouloir  estre:  mais  aussi  sa  nature  est  telle,  que 
naturellement  il  tient  le  ply  que  la  nourriture  luy  donne."  This  revived 
notion  of  the  Stoics  is  that  also  of  Montesquieu's  second  chapter  of 
L' Esprit  des  Lois. 


** PRACTICAL  LIBERTY"  AND  COMMON  SENSE     159 

Hobbes'^"  notions  on  society  and  government,  notions  which 
will  be  found  confuted  by  Hamilton  as  early  as  in  his  eighteenth 
year  when  he  wrote  his  second  pamphlet  The  Farmer  Refuted 
in  defense  of  the  American  cause.*^ 

Certainly  was  it  on  no  such  shifty  ground  as  this  that  our 
Constitution  was  erected.  Pelatiah  Webster  spoke  the  mind  of 
the  leaders  at  least  among  those  who  framed  it  when  in  his 
memorable  document  A  Dissertation  on  the  Political  Union  and 
Constitution  of  the  Thirteen  United  States  he  laid  it  down  as 
fundamental  that  ''This  union,  however  important,  cannot  be 
supported  without  a  constitution  founded  on  principles  of  natural 
truth,  fitness  and  utility."  They  were  not  afflicted  with  any 
of  our  present  day  cosmic  qualms,  for  they  were  not  agnostics. 
They  knew  their  own  minds  and  had  a  well  reasoned  and  reason- 
able belief  in  divine  Providence,  which  very  naturally  relieved 
them  from  any  sense  of  responsibility  for  the  universe  as  a 
whole,  as  well  as  from  any  fear  lest  somewhere  behind  every 
certainty  in  their  own  minds  it  might  still  be  playing  tricks. 
In  other  words  they  knew  that  whatever  the  abuses  of  men 
might  be,  the  universe  itself  remained  reasonable  and  that  man 
himself  had  been  reasonably  made.  The  result  was  there  was 
not  one  of  them  but  would  have  recognized  as  his  own  Burke's 
conviction  that  "There  is  nothing  in  the  world  really  beneficial 
that  does  not  lie  within  the  reach  of  informed  understanding 

"Wilson  evidently  had  both  Hobbes  and  Hume  in  mind  when  he  wrote: 
"A  body  of  morality,  pretending  to  be  complete,  has  sometimes  been  built 
on  a  single  pillar  of  the  inward  frame:  the  entire  conduct  of  life  has  been 
accounted  for,  at  least  the  attempt  has  been  made  to  account  for  it,  from 
a  single  quality  or  power.  Many  systems  of  this  kind  have  appeared, 
calculated  merely  to  flatter  the  mind.  According  to  some  writers  man  ia 
entirely  selfish ;  according  to  others  universal  benevolence  is  the  highest 
aim  of  his  nature.  One  founds  morality  upon  sympathy  solely;  another 
exclusively  upon  utility.  But  the  variety  of  human  nature  is  not  so  easily 
comprehended  or  reached.  It  is  a  complicated  machine ;  and  is  unavoidably 
so,  in  order  to  answer  the  various  and  important  purposes,  for  which  it  is 
formed  and  designed."  Works,  vol.  I,  p.  212.  Thus  we  see  that  the 
Fathers  knew  of  those  "other  thinkers"  of  whom  Viscount  Bryce  boasts, 
who  in  England  "were  drawing  from  the  actual  experience  of  mankind 
arguments  which  furnished  another  set  of  foundations  on  Avhich  democracy 
might  rest"  (Modern  Democracies,  vol.  I,  p.  44),  and  they  very  intelligently 
disagreed  with  them  for  leaving  the  rational  ideal  out  of  all  account. 

"  Loc.  cit.,  vol.  I,  p.  61. 


160  STATE  AND   CHURCH 

and  a  well  directed  pursuit.  There  is  nothing  that  God  has 
judged  good  for  us,  that  He  has  not  given  us  the  means  to 
accomplish  both  in  the  natural  and  the  moral  world.  "*^ 

How  Madison  and  Wilson  came  to  be  of  this  mind  in  con- 
sequence of  their  training  along  the  lines  of  the  Scottish  common 
sense  philosophy  we  have  already  seen.  In  Hamilton's  case 
this  influence  is  not  so  fully  traceable.  Yet  it  could  scarcely 
have  been  wanting  in  any  degree  much  below  that  enjoyed  by 
the  other  two.  In  the  first  place  he  was  himself  half  Scotch  and 
proud  of  the  fact.  Besides,  the  Rev.  Hugh  Knox,  Hamilton's 
pastor  and  teacher  at  St.  Croix,  though  originally  from  Ireland, 
was  a  Princeton  man  and  a  Presbyterian  minister  apparently 
very  much  of  Dr.  Witherspoon 's  school  of  thought,  seeing  that 
in  1777  he  drew  up  an  argument  in  favor  of  the  American  cause 
entitled  An  Address  to  America  hy  a  Friend  in  a  Foreign 
Government  which  he  sent  to  the  Continental  Congress  for  pub- 
lication.*^ Francis  Barber,  whose  school  Hamilton  first  attended 
after  his  arrival  in  New  York,  was  another  Princeton  man  as 
was  also  Elias  Boudinot  with  whom  he  lived,  and  he  himself 
came  into  personal  contact  with  Dr.  Witherspoon  at  the  time 
when  the  latter 's  reputation  for  philosophical  learning  was 
already  considerable  throughout  the  colonies  and  when  those 
with  Princeton  connections  could  scarcely  escape  being  interested 
in  the  reforms  he  was  instituting. 

But  even  if  the  facts  just  adduced  proved  nothing  with  regard 
to  Hamilton's  acquaintance  with  Scottish  common  sense  phi- 
losophy, there  was  another  source  of  fairly  consistent  thought, 
knowledge  of  which  he  certainly  did  share  with  "Wilson  and 
Madison,  and  which  by  itself  will  fully  explain  the  evident  fact 
that  in  all  his  wide  and  varied  reading  of  European  Authorities 
on  government,  law  and  political  science,  he  shows  a  discern- 
ment which  cannot  be  accounted  for  otherwise  than  by  his 
being  in  possession  of  a  definite  philosophy  of  his  own.  This 
source  of  thought  was  no  other  than  the  traditional  Whig 
theory  of  government,  which,  as  we  have  seen  in  the  previous 
chapter,  was  formulated  mainly  on  the  basis  of  scholastic  prin- 

*'  Works,  vol.  II,  p.  379. 

"H.  Jones  Ford,  Alexander  Hamilton,  p.  27. 


''PRACTICAL  LIBERTY"  AND  COMMON  SENSE     161 

ciples  and  set  forth,  as  occasion  demanded,  against  adverse 
theories  and  erroneous  political  views  in  order  that  the  Medieval 
tradition  of  liberty  embodied  in  English  law  and  constitutional 
forms  might  be  preserved  and  developed. 

The  philosophy  of  common  sense  was  without  doubt  eminently 
calculated,  under  the  circumstances,  to  keep  the  mind  true  to 
itself  in  the  face  of  Protestant  prejudice  and  save  it  from  con- 
fusion when  confronted  with  the  quibbles  of  the  sceptic,  the 
negations  of  the  rationalist  or  the  emotional  vagaries  of  the 
disciples  of  Rousseau.  For  tho.se  who  grasped  it  sincerely,  it 
would  naturally  be  conducive  to  the  maintenance  of  the  single 
eye.  But  in  regard  to  the  complex  problem  of  government 
it  had,  as  a  system,  little  to  suggest  that  was  positively  con- 
structive. As  the  Whig  doctrines,  on  the  other  hand,  are 
nowhere  found  fully  expounded  in  any  one  work  or  set  of 
writings,  if  we  except  Burke's  tracts  and  speeches,  the  question 
may  here  be  asked  what  evidence  is  there  that  Hamilton, 
Wilson  and  Madison  knew  anything  of  the  writings  of  Bellarmine 
and  Suarez?  With  regard  to  all  three  there  is  this  peculiar 
fact  to  be  noted  and  accounted  for.  They  were  strangely  in 
agreement  as  to  all  fundamental  and  vital  points.  Their 
reasons  for  disagreeing  with  such  authorities  as  they  do 
acknowledge,  are  almost  invariably  the  same  and  are  moreover 
in  accord  with  scholastic  principles.  Nor  is  there  any  apparent 
sign  that  long  continued  consultations  had  occurred  between  them 
previous  to  the  time  of  the  Federal  Convention  when  the  ideas 
of  all  three  were  already  fairly  well  formed.  All  three  were 
great  readers.  While  at  Princeton  Madison  is  known  to  have 
devoted  much  of  his  time  to  theology  with  the  view  of  explor- 
ing the  evidences  of  Christianity,  and.  we  have  it  on  the  authority 
of  Mr.  Gaillard  Hunt  that  there  was  a  copy  of  Bellarmine  in 
the  library  there  at  the  time.'**     Many  years  later  when  Jef- 

"  Loc.  cit.  It  is  a  notable  fact  that  these  men  seemed  entirely  free  from 
any  antagonism  to  the  Catholic  religion.  Writing  of  toleration  Wilson  said : 
"For  its  reception  and  establishment  where  it  has  been  received  and 
established,  the  world  has  been  thought  to  owe  much  to  the  inestimable 
writings  of  Locke.  To  the  inestimable  writings  of  that  justly  celebrated 
man,  let  the  tribute  of  applause  be  plenteously  paid;  but  while  immortal 
honors  are  bestowed  on  the  name  and  character  of  Locke,  why  should  an 


162  STATE   AND   CHURCH 

ferson  was  thinking  of  the  library  of  the  Univei-sity  of  Virginia 
he  wrote  to  Madison  and  asked  him  for  a  list  of  works  on  theology 
"knowing"  as  he  said  ''that  in  your  earlier  days  you  bestowed 
attention  on  this  subject."  In  his  answer  Madison  said  with 
reference  to  a  second  request  making  it  clear  that  only  theology 
need  be  included,  "I  send  you  the  list  I  had  mad©  out  (cover- 
ing the  first  five  centuries),  with  an  addition  on  the  same  paper 
of  such  books  as  a  hasty  glance  of  a  few  catalogues  and  my 
recollection  suggested.  Perhaps  some  of  them  may  not  have 
occurred  to  you,  and  may  suit  the  blank  you  have  not  filled." 
Now  the  first  two  names  on  this  list  are  those  of  St.  Thomas 
Aquinas  and  Duns  Scotus,  while  Bellarmine  is  mentioned  im- 
mediately after  Luther  and  Calvin,  against  whom  his  works  were 
chiefly  written.  If  Suarez  is  not  mentioned  the  omission 
argues  nothing,  since  his  best  known  works  would  naturally  be 
included  under  the  head  of  "the  moral  and  metaphysical  part" 
of  Divinity  which  Madison  of  set  purpose  did  not  draw  on,  as 
Jefferson  had  expressed  himself  satisfied  with  his  own  list  of 
works  in  the  branch.*^  As  for  Wilson,  we  have  had  evidence 
enough  of  the  manner  in  which  he  insists  on  the  unusual  aspect 
of  the  theory  that  was  incorporated  into  the  Constitution,  a 
view  which  was  more  than  borne  out  by  the  difficulties 
encountered  in  trying  to  get  others  to  understand  the  true  nature 
of  the  proposed  form  of  government  as  planned  in  the  Con- 
vention. Yet  nothing  in  Wilson's  writings  would  lead  one 
to  suspect  that  he  considered  any  part  of  this  theory  as  originat- 
ing with  himself.  On  the  other  hand  he  does  say  in  one  place, 
"that  the  foundation  at  least  of  a  separate,  an  unbiased,  and 
an  independent  law  education  should  be  laid  in  the  United 
States"  since  "by  the  revolution  in  the  United  States,  a  very 
great  alteration — a  very  great  improvement —  .    .    .  has  taken 

ungracious  silence  be  observed  with  regard  to  the  name  and  character  of 
Calvert! 

' '  Let  it  be  known,  that  before  the  doctrine  of  toleration  was  published  in 
Europe,  the  practice  of  it  was  established  in  America.  A  law  in  favor  of 
religious  freedom  was  passed  in  Maryland,  as  early  as  the  year  one  thou- 
sand six  hundred  and  forty -nine. "     Works,  vol.  I,  p.  4. 

"Works,  vol.  Ill,  pp.  450,  451.  For  Jefferson's  letter  and  the  list  see 
W.  C.  Rives'  Life  and  Times  of  Madison,  vol.  I,  pp.  643,  644. 


"PRACTICAL  LIBERTY"  AND  COMMON  SENSE     163 

place  in  our  system  of  Government."'*®  And  Madison  in  a 
letter  to  Jefferson  on  the  subject  of  a  textbook  for  the  Law 
School  was  evidently  of  the  same  mind  when  he  wrote:  "It 
is  certainly  very  material  that  the  true  doctrines  of  liberty,  as 
exemplified  in  our  political  system,  should  be  inculcated  on  those 
who  are  to  sustain  and  administer  it.  It  is,  at  the  same  time 
not  easy  to  find  standard  books  that  will  be  both  guides  and 
guards  for  the  purpose.  Sidney  and  Locke  are  admirably  cal- 
culated to  impress  on  young  minds  the  right  of  nations  to 
establish  their  own  Governments,  and  to  inspire  a  love  of  free 
ones,  but  afford  no  aid  in  guarding  our  Republican  charters 
against  constructive  violations.  The  Declaration  of  Independ- 
ence, though  rich  in  fundamental  principles,  and  saying  every- 
thing that  could  be  said  in  the  same  number  of  words,  falls 
nearly  under  a  like  observation.  The  'Federalist'  may  fairly 
enough  be  regarded  as  the  most  authentic  exposition  of  the  text 
of  the  Federal  Constitution,  as  understood  by  the  Body  which 
prepared  and  the  authority  which  accepted  it.  Yet  it  did  not 
foresee  all  the  misconstructions  which  have  occurred,  nor  pre- 
vent some  that  it  did  foresee."" 

In  Hamilton's  case  there  seems  to  be  no  apparent  argument 
for  any  direct  acquaintance  on  his  part  with  the  writings  of  the 
two  Jesuits  beyond  the  fact  that  he  was  a  Whig  and  the  general 
one  of  his  marked  agreement  with  the  other  two,  together  with 
the  striking  conformity  of  almost  all  his  principles  on  Govern- 
ment with  those  of  the  scholastic  writers.  One  point,  however, 
he  does  make  clear  and  that  is,  that  whatever  the  source  of  our 
theory  of  Government,  it  was  certainly  not  derived  from  the 
Votaries  of  Enlightment  in  Europe.  Coming,  moreover,  from 
one  who  as  a  political  thinker  was  second  to  Burke  only,  if  not 
his  peer,  the  following  statements  are  all  the  more  significant. 
He  said : 

"Facts,  numerous  and  unequivocal,  demonstrate  that  the 
present  Era  is  among  the  most  extraordinary  which  have  oc- 
curred in  the  history  of  human  affairs.  Opinions,  for  a  long 
time,  have  been  gradually  gaining  ground,  which  threaten  the 

"  Works,  vol.  I,  pp.  23,  24. 
"Works,  vol.  Ill,  p.  481. 


164  STATE   AND   CHURCH 

foundations  of  religion,  morality  and  society.  An  attack  was 
first  made  upon  the  Christian  revelation,  for  which  natural 
religion  was  offered  as  the  substitute.  The  Gospel  was  to  be 
discarded  as  a  gross  imposture,  but  the  being  and  attributes  of 
God,  the  obligations  of  piety,  even  the  doctrine  of  a  future 
state  of  rewards  and  punishments,  were  to  be  retained  and 
cherished. 

'*In  proportion  as  success  has  appeared  to  attend  the  plan, 
a  bolder  project  has  been  unfolded.  The  very  existence  of  a 
Deity  has  been  questioned  and  in  some  instances  denied.  The 
duty  of  piety  has  been  ridiculed,  the  perishable  nature  of  man 
asserted,  and  his  hopes  bounded  to  the  short  span  of  his  earthly 
state.  Death  has  been  proclaimed  an  Eternal  Sleep ;  '  the 
dogma  of  the  immortality  of  the  soul  a  cheat,  invented  to 
torment  the  living  for  the  benefit  of  the  dead.'  Irreligion,  no 
longer  confined  to  the  closets  of  conceited  sophists,  nor  to  the 
haunts  of  wealthy  riot,  has  more  or  less  displayed  its  hideous 
front  among  all  classes. 

"Wise  and  good  men  took  a  lead  in  delineating  the  odious 
character  of  despotism,  in  exhibiting  the  advantages  of  a  moder- 
ate and  well  balanced  Government,  in  inviting  nations  to  con- 
tend for  the  enjoyment  of  national  liberty.  Fanatics  in  political 
science  have  since  exaggerated  and  perverted  their  doctrines. 
Theories  of  Government  unsuited  to  the  nature  of  man,  mis- 
calculating the  force  of  his  passions,  disregarding  the  lessons 
of  experimental  wisdom,  have  been  projected  and  recommended. 
These  have  everywhere  attracted  Sectaries,  and  everywhere  the 
fabric  of  Government  has  been  in  different  degrees  undermined. 

"A  league  has  at  length  been  cemented  between  the  Apostles 
and  Disciples  of  irreligion  and  of  anarchy;  Religion  and  Govern- 
ment have  both  been  stigmatized  as  abuses;  as  unwarrantable 
restraints  upon  the  freedom  of  man ;  as  causes  of  the  corruption 
of  his  nature,  intrinsically  good;*^  as  sources  of  an  artificial 

**  Wilson  noted  the  opposite  extreme  from  which  this  was  in  some  measure 
a  revulsion.  ' '  It  has  been  the  custom, ' '  said  he,  ' '  of  certain  philosophers, 
and,  I  must  here  add,  of  certain  divines,  to  represent  human  nature  as  in 
a  state  of  hostility  endless  and  uninterrupted,  internal  as  well  as  external. 
According  to  these  philosophers  and  according  to  these  divines,  he  is  at 
war  with  all  the  world  as  well  as  with  himself."    Works,  vol.  I,  p.  218. 


"PRACTICAL  LIBERTY"  AND  COMMON  SENSE     165 

and  false  morality  which  tyrannically  robs  him  of  the  enjoy- 
ment for  which  his  passions  fit  him,  and  as  clogs  upon  his 
progress  to  the  perfection  for  which  he  was  destined. 

"As  a  corollary  from  these  premises,  it  is  a  favorite  tenet 
of  the  Sects  that  religious  opinion  of  any  sort  is  unnecessary  to 
society ;  that  the  maxims  of  a  genuine  morality  and  the  authority 
of  the  magistracy  and  the  laws  are  sufficient  and  ought  to  be 
the  only  security  for  civil  rights  and  private  happiness. 

"As  another  corollary  it  is  occasionally  maintained  by  the 
same  sect  that  but  a  small  portion  of  power  is  requisite  to  Gov- 
ernment; that  even  this  portion  is  only  temporarily  necessary, 
in  consequence  of  the  bad  habits  which  have  been  produced  by 
the  errors  of  ancient  systems;  and  that  as  human  nature  shall 
refine  and  ameliorate  by  the  operation  of  a  more  enlightened 
plan,  government  itself  will  become  useless  and  society  will 
subsist  and  flourish  free  from  shackles. 

"If  all  the  votaries  of  this  new  philosophy  do  not  go  the 
whole  length  of  its  frantic  creed,  they  all  go  far  enough  to 
endanger  the  full  extent  of  the  mischiefs  which  are  inherent 
in  so  wide  and  fatal  a  scheme  every  modification  of  which  aims 
a  mortal  blow  at  the  vitals  of  human  happiness. 

* '  The  practical  development  of  this  pernicious  system  has  been 
seen  in  France.  It  has  served  as  an  engine  to  subvert  all  her 
ancient  institutions,  civil  and  religious,  with  all  the  checks  that 
served  to  mitigate  the  rigor  of  authority;  it  has  hurried  her 
headlong  through  a  rapid  succession  of  dreadful  revolutions, 
which  have  laid  waste  property,  made  havoc  among  the  arts, 
overthrown  cities,  desolated  provinces,  unpeopled  regions, 
crimsoned  her  soil  with  blood,  and  deluged  it  in  crime,  poverty 
and  wretchedness,  and  all  this  as  yet  for  no  better  purpose  than 
to  erect  on  the  ruin  of  former  things  a  despotism  unlimited  and 
uncontrolled ;  leaving  to  a  deluded,  an  abused,  a  plundered,  a 
scourged,  and  an  oppressed  people,  not  even  the  shadow  of 
liberty  to  console  them  for  a  long  train  of  substantial  mis- 
fortunes, of  bitter  suffering."" 

Talleyrand  well  said  of  Hamilton  "II  a  divine  I'Europe." 

*•  Works,  vol.  VIII,  pp.  425-428. 


7.     OUR  MEDIEVAL  INHERITANCE  OF  LIBERTY 

By  Rev.  Moorhouse  F.  X.  Millar,  S.J. 

In  looking:  for  the  philosophy  of  government  to  which  we,  in 
this  country,  are  committed  by  our  past  as  a  nation,  we  should 
naturally  turn  to  the  Declaration  of  Independence  and  the  Con- 
stitution. For  as  Hamilton  said  "After  all,  the  instrument 
must  speak  for  itself."  But  then  he  added  "Yet,  to  candid 
minds,  the  contemporary  explanation  of  it,  by  men  who  had  a 
perfect  opportunity  of  knowing  the  view  of  its  framers,  must 
operate  as  weighty  collateral  reason"^  in  the  matter  of  explain- 
ing its  construction.  Because  of  the  failure  to  adapt  this  last 
method  with  all  the  care  and  accuracy  which  the  subject 
demanded,  many  very  erroneous  notions  regarding  the  prin- 
ciples involved  in  these  two  documents  have  been  widely  fostered, 
especially  by  writers  of  textbooks.  In  the  endeavor  to  main- 
tain that  ours  "was  an  entirely  new  conception  of  governmental 
authority,"  even  judicious  thinkers  such  as  David  Jayne  Hill 
find  themselves  reduced  to  fall  back  on  some  statement  or 
other  to  the  effect  that  "It  was  foreshadowed  by  a  philosophy 
of  enlightenment  that  disclosed  the  insolence  and  usurpation  of 
power  unregulated  by  law."^  This  manner  of  accounting  for 
the  origin  of  American  ideas  on  government  only  strengthens 
the  position  of  the  radical  economic  determinist  who  with 
Charles  A.  Beard  will  insist  that  "in  the  absence  of  a  critical 
analysis  of  legal  evolution,  all  sorts  of  vague  abstractions  dom- 
inate most  of  the  thinking  that  is  done  in  the  field  of  law."' 

'Loe.  cit.,  vol.  VIII,  p.  345. 

*  American  World  Policies,  pp.  154,  151. 

•  An  Economic  Interpretation  of  the  Constitution  of  the  United  States, 
p.  8. 

166 


MEDIEVAL  INHERITANCE   OF  LIBERTY         167 

The  conclusion  to  'be  drawn  from  this  observation  is,  of  course, 
that  we  should  emulate  German  savants  by  taking  over  their 
ideas  and  principles  and  those  of  their  English  and  American 
disciples.  Whereas  if  more  pains  had  been  devoted  to  a  thorough 
study  of  the  writings  of  those  who  framed  our  great  legal 
instruments  it  would  have  been  discovered  that  their  ideas  were 
not  so  much  new  as  well  tried  and  sound  beyond  any  known  to 
the  "modernism"  of  the  present  age. 

Of  the  Declaration  of  Independence  Jefferson  himself  wrote 
"With  respect  to  our  rights,  and  the  acts  of  the  British  gov- 
ernment contravening  those  rights  there  was  but  one  opinion 
on  this  side  of  the  wat^r.  All  American  Whigs  thought  alike 
on  these  subjects.  vWhen  forced,  therefore,  to  resort  to  arms 
for  redress,  an  appeal  to  the  tribunal  of  the  world  was  deemed 
proper  for  our  justification.  This  was  the  object  of  the  Decla- 
ration of  Independencej/'^ot  to  find  out  new  principles,  or 
new  arguments,  never  before  thought  of,  not  merely  to  say 
things  which  had  never  been  said  before;  but  to  place  before 
mankind  the  common  sense  of  the  subject  in  terms  so  plain 
and  firm  as  to  command  their  assent  and  to  justify  ourselves 
in  the  independent  stand  we  are  compelled  to  take.  Neither 
aiming  at  originality  of  principle  or  sentiment,/<ior  yet  copied 
from  any  particular  or  previous  writing,  it  was  intended  to  be 
an  expression  of  the  American  min_^  and  to  give  to  that  ex- 
pression the  proper  tone  and  spirit  called  for  by  the  occasion. 
All  its  authority  rests  then  on  the  harmonizing  sentiments  of 
the  day,  whether  expressed  in  conversation,  in  letters,  printed 
essays,  or  in  the  elementary  books  of  public  right,  as  Aristotle, 
Cicero,  Locke,  Sidney,  etc.,  (sic.)"* 

That  "all  American  Whigs  thought  alike  on  these  subjects" 
is  clearly  'borne  out  by  Hamilton  in  his  controversy  with  Dr. 
Seabury  during  the  course  of  the  two  years  previous  to  the 
framing  of  the  Declaration.  "Apply  yourself,"  he  urges  upon 
his  adversary  "without  delay,  to  the  study  of  the  law  of  nature. 
I  would  recommend  to  your  perusal,  Grotius,  Puffendorf,  Locke, 
Montesquieu   and   Burlemaqui.     I    might    mention    other    (sic) 

*To  Henry  Lee,  May  8,  1825,  Works,  vol.  VIII,  p.  407,  Washington 
edition. 


168  STATE   AND   CHURCH 

excellent  writers  on  this  sufegect ;  but  if  you  attend  diligently 
to  these  you  will  not  require  any  others. 

"There  is  so  strong  a  similitude  between  your  political  prin- 
ciples and  those  maintained  by  Mr.  Hobbes,  that,  in  judging 
from  them,  a  pers'on  might  very  easily  mistake  you  for  a  disciple 
of  his.  His  opinion  was  exactly  coincident  with  yours,  relative 
to  man  in  a  state  of  nature.  He  held  as  you  do,  that  he  was 
then  perfectly  free  from  all  restraint  of  law  and  government. 
Moral  obligation,  according  to  him,  is  derived  from  the  intro- 
duction of  civil  society ;  and  there  is  no  virtue  but  what  is  purely 
artificial,  the  mere  contrivance  of  political  for  the  maintenance 
of  social  intercourse.  But  the  reason  he  ran  into  this  absurd 
and  impious  doctrine  was,  that  he  disbelieved  the  existence  of 
an  intelligent,  superintending  principle,  who  is  the  governor, 
and  will  be  the  final  judge,  of  the  universe. 

.  .  .  '^Togrant  that  there  is  a  supreme  Intelligence  who 
rules  the  world  and  has  established  laws  to  regulate  the  actions 
of  His  creatures,  and  still  to  assert  that  man,  in  a  state  of  nature, 
may  be  considered  as  perfectly  free  from  all  restraints  of  laiv 
and  government  appears  to  a  common  understanding,  altogether 
irreconcilabkx' 

"Good  and  wise  men,  in  all  ages,  have  embraced  a  very 
dissimilar  theory.  They  have  supposed  that  the  Deity  from 
the  relations  we  stand  in  to  Himself  and  to  each  other,  has 
constituted  an  eternal  and  immutable  law,  which  is  indispend- 
ably  obligatory  upon  all  mankind,  prior  to  any  human 
institution  whatever. 

"This  is  what  is  called  the  law  of  nature  'which  being 
coeval  with  mankind,  and  dictated  by  God  himself,  is,  of  course, 
superior  in  obligations  to  any  other.  It  is  binding  over  all  the 
globe,  in  all  countries,  and  at  all  times.  ^^No  human  laws  are 
of  any  validity,  if  contrary  to  this;  and  such  of  them  as  are 
valid  derive  all  their  authority  mediately  or  immediately,  from 
this  original^^Blackstone. 

"Upon  this  law  depend  the  natural  rights  of  mankind:  the 
Supreme  Being  gave  existence  to  man,  together  with  the  means 
of  preserving  and  beautifying  that  existence.  He  endowed  him 
with  rational  faculties,  by  the  help  of  which  to  discern  and 


MEDIEVAL  INHERITANCE  OF  LIBERTY         169 

pursue  such  things  as  were  consistent  with  his  duty  and  interest ; 
and  invested  him  with  an  inviolable  right  to  personal  liberty 
and  personal  safety. 

"Hence,  in  a  state  of  nature,  no  man  had  any  moral  power 
to  deprive  another  of  his  life,  limbs  and  property,  or  liberty; 
nor  the  least  authority  to  command  or  exact  obedience  from  him, 
except  that  which  arose  from  the  ties  of  consanguinit3\ 

"Hence,  also,  the  origin  of  all  civil  government,  justly 
established,  must  be  a  voluntary  compact  between  the  rulers 
and  the  ruled,  and  must  be  liable  to  such  limitations  as  are 
necessary  for  the  security  of  the  ahsolute  rights  of  the  latter ; 
for  what  original  title  ean  any  man,  or  set  of  men,  have  to 
''  govern  others,  except  their  own  conseiitj?/  To  usurp  dominion 
over  a  people  in  their  own  despite,  or  fo  grasp  at  a  more  exten- 
sive power  than  they  are  willing  to  intrust,  is  to  violate  that 
law  of  nature,  which  gives  every  man  a  right  to  his  personal 
liberty,  and  can,  ther_efore,  confer  no  obligation  to  obedience." 

"The  principle  .^im  of  society  is  to  protect  individuals  in 
the  enjoyment  of  those  absolute  rights  which  were  vested  in 
them  by  the  immutable  laws  of  natur^but  which  could  not  be 
preserved  in  peace  without  that  mutual  assistance  and  inter- 
course which  is  gained  by  the  institution  of  friendly  and  social 
communities.  Hence  it  follows,  that/fhe  first  and  primary  end 
of  human  laws  is  to  maintain  and  regulate  these  ahsalute  rights 
of  individuals.'/  (Blackstone.) 

"If  we  examine  the  pretensions  of  Parliament  by  this 
criterion  which  is  evidently  a  good  one,  we  shall  presently 
detect  their  injustice.  First,  they  are  subversive  of  our  natural 
liberty,  because  an  authority  is  assumed  over  us  which  we  by 
no  means  assent  to.  And  secondly,  they  divest  us  of  that  moral 
security  for  our  lives  and  properties,  which  we  are  entitled  to, 
and  which  it  is  the  primary  end  of  society  to  bestow.  For  such 
security  can  never  exist  while  we  have  no  part  in  making  the 
laws  that  are  to  bind  us,  and  while  it  may  be  the  interest  of 
our  uncontrolled  legislators  to  oppress  us  as  much  as 
possible."  .    .   .° 

"Loc.  cit.,  Tol.  I,  pp.  61-64.  The  "assent"  spoken  of  in  this  last  para- 
graph is  clearly  that  of  a  definite  people,  viz.,  the  colonists,  living  under  a 


-h 


170  STATE   AND   CHURCH 

**As  to  the  degrees  and  modifications  of  that  subordination 
which  is  due  to  the  parent  state,  these  must  depend  upon  other 
things  'besides  the  mere  act  of  emigration  to  inhabit  or  settle  a 
distant  country.  These  must  be  ascertained  by  the  spirit  of 
the  constitution  of  the  mother  country,  by  the  compacts  for  the 
purpose  of  colonizing  and  more  especially  by  the  law  of  nature, 
and  that  supreme  law  of  every  society — Us  own  happiness."^ 

...  *  '/jPhe  dependence  of  the  colonies  on  Great  Britain  is  an 
ambiguous  and  equivocal  phrase.  It  may  either  mean  depend- 
ence on  the  people  of  Great  Britian  or  on  the  King.  In  the 
former  sense,  it  is  absurd  and  unaccountable ;  in  the  latter  it 
is  just  and  rational./'^.    .   . 

''The  right  of  Parliament  to  legislate  for  us  cannot  be  ac- 
counted for  upon  any  reasonable  grounds.  The  constitution 
of  Great  Britain  is  very  properly  called  a  limited  monarchy, 
the  people  having  reserved  to  themselves  a  share  in  the  legis- 
lature, as  a  check  upon  the  regal  authority,  to  prevent  its 
degenerating  into  despotism  and  tyranny.  The  very  aim  and 
intention  of  the  democratical  part,  or  the  House  of  Commons, 
is  to  secure  the  rights  of  the  people.  Its  very  being  depends 
upon  those  rights.  Its  whole  power  is  derived  from  them  and 
must  be  terminated  by  them."*.   .   . 

''When  we  ascribe  to  the  British  House  of  Commons  a  juris- 
diction over  the  colonies,  the  scene  is  entirely  reversed.^     All 

definite  constitution,  viz.,  the  English  constitution,  and,  therefore,  it  is  a 
question  here  of  a  people  that  has  transferred  "power  to  a  king  yet  retain 
it  in  themselves  for  certain  affairs. ' '  See  the  words  of  Suarez  further  on. 
Hamilton  even  in  his  early  years  would  have  been  the  last  to  hold  as  a  gen- 
eral principle  of  government  that  the  authority  of  rulers  depends  on  the 
present  assent  of  the  people.  His  argument  is  that  the  pretentions  of 
Parliament  go  beyond  the  constitution  and,  therefore,  beyond  anything 
assented  to  in  the  past  and  are  being  forced  on  the  colonists  without  their 
assent  in  the  present. 

•/bid.,  p.  65. 

''Ibid.,  p.  66.  Burke  in  his  "Thoughts  on  the  Cause  of  the  Present  Dis- 
contents, ' '  1770,  had  said :  ' '  The  virtue,  spirit,  and  essence  of  a  House  of 
Commons  consists  in  its  being  the  express  image  of  the  feelings  of  the 
nation,  j^was  not  instituted  to  be  a  control  upon  the  people,  as  of  late  it 
has  been  taught  by  a  doctrine  of  the  most  pernicious  tendency.  It  was 
designed  as  a  control  for  the  people^'     Works,  vol.  II,  p.  50,  51. 

» Ibid.,  p.  69.  ^ 

•Burke  in  his  Address  to  the  King  declared  "we  are  convinced,  beyond 


MEDIEVAL  INHERITANCE  OF  LIBERTY         171 

these  kinds  of  security  (which  the  people  of  Britain  have  for  the 
good  deportment  of  their  representatives  toward  them)  im- 
mediately disappear;  no  ties  of  gratitude  or  interest  remain. 
Interest,  indeed,  may  operate  to  our  prejudice.  To  oppress  us 
may  serve  as  a  recommendation  to  their  constituents,  as  well  as 
an  alleviation  of  their  own  incumbrances.  The  British  patriots 
may,  in  time,  be  heard  to  court  the  gale  of  popular  favor  by 
boasting  their  exploits  in  laying  some  new  imposition  on  their 
American  vassals,  and  by  that  means  lessening  the  burdens  of 
their  friends  and  fellow  subjects."^" 

Such  were  the  grounds  for  the  resistance  to  England,  first, 
and  finally  for  declaring  the  colonies  independent.  Nor  in  this 
is  there  any  trace  of  Rousseau  or  of  the  empty  moonshine  of 
the  French  Enlightenment.  It  is  merely  an  appeal  to  "those 
principles  of  original  justice  from  whence  alone"  as  Burke  said 
"our  title  to  every  thing  valuable  in  society  is  derived."  There 
is  the  same  distinction  between  liberty  and  liberties,  between 
a  due  and  an  established  order  which  we  have  seen  to  be  char- 
acteristic of  the  Medieval  theory  of  government.  The  natural 
law  is  not  made  a  pretext  for  flying  in  the  face  of  tradition,  but 
forms  the  basis  for  the  just  claim  to  such  rights  as  Englishmen 
had  acquired  in  time,  and  of  whieh  they  could  not  be  dispos- 
sessed without  their  consent.  (Far  from  condemning  the  old 
order,  the  complaint  was  that  in  supporting  Parliament  in  its 
unwarranted  claims  to  tax  the  colonies  the  King  was  abusing 
his  prerogative^^X^ilson  in  his  Considerations  on  the  Nature 

a  doubt,  that/&!  system  of  dependence  which  leaves  no  security  to  the  people 
for  any  part  of  their  freedom  in  their  own  hands  cannot  be  established  in 
any  inferior  member  of  the  British  empire,  without  consequently  destroy- 
ing the  freedom  of  that  very  body  in  favor  of  whose  boundless  pretentions 
such  a  scheme  is  adopted^  We  know  and  feel  that  arbitrary  power  over 
distant  regions  is  not  within  the  competence,  nor  to  be  exercised  agreeably 
to  the  forms,  or  consistently  with  the  spirit  of  great  popular  assemblies. 
If  such  assemblies  are  called  to  a  nominal  share  in  the  exercise  of  such 
power,  in  order  to  screen,  under  general  participation,  the  guilt  of  desperate 
measures,  it  tends  to  corrupt  the  deliberate  character  of  those  assemblies, 
in  training  them  to  blind  obedience;  in  habituating  them  to  proceed  upon 
grounds  of  fact,  with  which  they  can  rarely  be  sufficiently  acquainted,  and 
in  rendering  them  executive  instruments  of  designs,  the  bottom  of  which 
they  cannot  possibly  fathom."  Works,  vol.  V,  p.  359. 
"  Ibid.,  71. 


172  STATE   AND   CHURCH 

and  Extent  of  the  Legislative  Authority  of  the  British  Parlia- 
ment called  to  mind  the  fact  that  ''sensible  that  prerogative, 
or  discretionary  power  of  acting  where  the  laws  are  silent,  is 
absolutely  necessary,  and  that  this  prerogative  is  most  properly 
intrusted  to  the  executor  of  the  laws,  they  (the  earlier  repre- 
sentatives of  the  commons)  did  not  oppose  the  exercise  of  it, 
while  it  was  directed  towards  the  accomplishment  of  its  original 
end :  but  sensible  likewise  that  the  good  of  the  State  was  this 
original  end,  they  resisted,  with  vigor,  every  arbitary  measure, 
repugnant  to  law,  and  unsupported  by  maxims  of  puhlic  free- 
dom or  utility,""  and  again  in  his  Speech  at  the  Convention  in 
Pennsylvania  (1775),  he  said:  "The  goveriyaatent  of  Britain 
.  .  .  was  never  an  arbitrary  government : .  our  ancestors  were 
never  inconsiderate  enough  to  trust  those  rights,  which  God 
and  nature  had  given  them,  unreservedly  into  the  hands  of 
their  princesy^  However  difficult  it  may  be  in  other  states,  to 
prove  an  original  contract  subsisting  in  any  other  manner,  and 
on  any  other  conditions,  than  are  naturally  and  necessarily 
implied  in  the  very  idea  of  the  first  institution  of  a  state;  it 
is  the  easiest  thing  imaginable,  since  the  revolution  of  1688, 
to  prove  it  in  our  constitution,  and  to  ascertain  some  of  the 
material  articles,  of  which  it  consists.  It  has  been  often  ap- 
pealed to:  it  has  been  often  broken,  at  least  on  one  part;  it 
has  been  often  renewed :  it  has  often  been  confirmed :  it  still 
subsists  in  its  full  force:  ''it  binds  the  King  as  much  as  the 
meanest  subject."  (Bolingbroke:  Patriot  King.)  The  measures 
of  his  power,  and  the  limits,  beyond  which  he  cannot  extend  it, 
are  circumscribed  and  regulated  by  the  same  authority,  and, 
with  the  same  precision,  as  the  measures  of  the  subject's  obedi- 
ence, and  the  limits  beyond  which  he  is  under  no  obligation 
to  practice  it,  are  fixed  and  ascertained.  Liberty  is,  by  the 
constitution,  of  equal  stability,  or  equal  antiquity,  and  of  equal 
authority  with  prerogative.  The  duties  of  the  King  and  those 
of  the  subject  are  plainly  reciprocal:  they  can  be  violated  on 
neUher  side,  unless  they  are  performed  on  the  other.  The 
Aaw  is  the  common  standard,  hy  which  the  excesses  of  pre- 
/  rogative  as  well  as  the  excesses  of  liberty  are  to  be  regulated 
"  Works,  vol.  II,  p.  519. 


MEDIEVAL  INHERITANCE  OF  LIBERTY         173 

and  reformeci'-'^  Wilson  then  concludes  his  speech  by  declar- 
ing that  because  the  King  had  acted  unconstitutionally  "the 
distinction  between  him  and  his  ministers  has  been  lost:  but 
they  have  not  been  raised  to  his  situation:  he  has  sunk  to 
theirs."" 

Thus  the  first  argument  was  "that  both  the  letter  and  the 
spirit  of  the  British  constitution  justify  .  .  .  resistance. "  ^^ 
In  this  connection  Suarez  had  said  "What  Bellarmine  said 
quoting  Navarrus,  namely :  that  the  people  never  so  transfer 
their  power  to  a  ruler  as  not  to  retain  it  habitually  (habitu) 
and  in  such  a  manner  as  to  be  capable  of  using  it  in  certain 
cases  .  .  .  does  not  furnish  grounds  for  a  people  to  proclaim 
itself  free  at  will.  For  Bellarmine  did  not  say  simply  that  the 
people  retain  habitual  power  to  perform  whatever  acts  they 
please  and  whenever  they  please  but  with  great  restriction  and 
circumspection  he  said  in  certain  cases  etc.,  that  is  to-day, 
according  to  the  conditions  of  a  previous  contract  or  accord- 
ing to  the  exigencies  of  natural  justice,  for  compacts  and  just 
agreements  must  be  kept.  Therefore  if  a  people  transfers 
power  to  a  king  yet  retain  it  in  themselves  for  certain  affairs 
or  for  things  of  greater  moment,  it  is  allowable  for  them  to  use 
it  and  to  maintain  their  right.  Such  a  right,  however,  ought 
to  be  sufficiently  ascertained  either  from  ancient  and  authentic 
documents  or  from  immemorial  custom.  By  the  same  reason 
if  the  King  changes  his  just  power  into  tyranny  by  abusing 
it  to  the  manifest  detriment  of  the  state  the  people  may  have 
recourse  to  the  natural  power  of  self-defense  for  they  never 
deprive  themselves  of  this."" 

In  keeping  with  the  proviso  laid  down  by  Suarez  that  "such  a 
right  ought  to  be  sufficiently  ascertained"  both  Hamilton  and 
Wilson  presented  a  set  of  facts  in  law  and  history.  Each 
set  of  facts  though  different  were  certainly  sufficient  to  establish 
the  claim  that,  granting  the  principle  of  consent,  Parliament 
had  no  right  to  tax  the  colonies.  Wilson  in  the  advertisement 
to  the  Considerations  on  the  Legislative  Authority  of  the  British 

"  Ibid.,  pp.  557,  565. 

"  Ibid.,  p.  564. 

"Defensio  Fidei  Catholicse,  III,  c.  3,  n.  3. 


174  STATE   AND   CHURCH 

Parliament  even  went  so  far  as  to  state  candidly :  ' '  Many  will, 
perhaps,  be  surprised  to  see  the  legisilative  authority  of  the 
British  Parliament  over  the  eolonies  denied  in  every  instance. 
Those  the  writer  informs,  that,  when  he  began  this  piece,  he 
would  probably  have  been  surprised  at  such  an  opinion  him- 
self ;  for  that  it  was  the  result,  and  not  the  occasion,  of  his  dis- 
quisitions. He  entered  upon  them  with  a  view  and  expecta- 
tion of  being  able  to  trace  some  constitutional  line  between  those 
cases  in  which  we  ought,  and  those  in  which  we  ought  not,  to 
acknowledge  the  power  of  Parliament  over  us\  In  the  prosecu- 
tion of  his  inquiries,  he  became  fully  convinced  that  such  a  line 
does  not  exist;  and  that  there  can  be  no  medium  between 
acknowledging  and  denying  that  power  in  all  cases. "^^ 

If  from  all  this  we  turn  to  the  Declaration  of  Independence 
and  study  its  theoretic  portion  in  the  light  of  what  we  have 
seen,  it  will  appear  clearly  that  it  is  in  truth  not  an  assertion 
of  "new  principles  or  new  arguments"  but  a  declaration  of 
principles  rooted  in  the  very  foundation  of  Christian  civilization. 
In  Jefferson's  splendid  synthesis  they  stand  out  to  the  world  not 
merely  as  the  legitimate  ground  for  our  separation  from  Eng- 
land, where  they  were  refused  recognition,  but  as  the  true 
Medieval  and  Christian  norm  of  all  just  government. 

*'We  hold  these  truths  to  be  self-evident,  that  all  men  are 
created  equal,  that  they  are  endowed,  by  their  Creator,  with 
certain  unalienable  rights,  that  among  these  are  life,  liberty, 
and  the  pursuit  of  happiness.  That  to  secure  these  rights, 
governments  are  instituted  among  men,  deriving  their  just  pow- 
ers from  the  consent  of  the  governed,  that  whenever  any  form 
of  government  becomes  destructive  of  these  ends,  it  is  the  right 
of  the  people  to  alter  or  to  abolish  it,  and  to  institute  new  govern- 
ment laying  its  foundation  on  such  principles,  and  organizing 
its  powers  in  such  form  as  to  them  shall  seem  most  likely  to 
effect  their  safety  and  happiness." 

Even  the  term  "happiness"  is  not  to  be  understood  here  in 
the  Utilitarian  sense  of  Bentham's  "Greatest  happiness  of  the 
greatest  number."  Suarez  had  said  "As  laws  are  imposed  on 
the  community,  so  they  should  be  enacted  for  the  good  of  the 

"  Ibid.,  p.  503. 


MEDIEVAL  INHERITANCE  OF  LIBERTY         175 

community,  otherwise  they  would  be  in  conflict  with  the  due 
order  of  things.  "^^  And  this  he  proved  by  arguing  that  since 
a  law  is  a  common  rule  of  moral  actions  it  should  have  the 
same  first  principle  as  have  our  moral  actions,  which  is  our  final 
end  or  happiness.  In  his  Considerations  Wilson  stated,  even 
before  Jefferson,  that  ''all  men  are  by  nature,  equal  and  free: 
no  one  has  a  right  to  any  authority  over  another  without  his 
consent:  all  lawful  government  is  founded  on  the  consent  of 
those  who  are  subject  to  it;  such  consent  was  given  with  a 
view  to  ensure  and  to  increase  the  happiness  of  the  governed, 
above  what  that  could  enjoy  in  an  independent  and  unconnected 
state  of  nature.  The  consequence  is,  that  the  happiness  of  the 
society  is  the  first  law  of  every  government.""  We  have  already 
seen  how  Hamilton  repeated  this  last  statement. ^^  But  Madison, 
more  explicit  than  either  of  these,  declared:  "There  is  no 
maxim,  in  my  opinion,  which  is  more  liable  to  be  misapplied, 
and  which,  therefore,  more  needs  elucidation,  than  the  current 
one,  that  the  interest  of  the  majority  is  the  political  standard 
of  right  and  wrong.  Taking  the  word  'interest'  as  synony- 
mous with  'ultimate  happiness,'  in  which  sense  it  is  qualified 
with  every  necessary  moral  ingredient,  the  proposition  is  no 
doubt  true.  But  taking  it  in  the  popular  sense  as  referring 
to  immediate  augmentation  of  property  and  wealth  nothing 
can  be  more  false.  In  the  latter,  it  would  be  the  interest  of  the 
majority  in  every  community  to  despoil  and  enslave  the  minority 
of  individuals."^® 

With  regard  to  the  preamble  to  the  Declaration  of  Independ- 
ence, taken  as  a  whole,  Mr.  Gaillard  Hunt,  chief  of  division  of 
manuscripts.  Library  of  Congress,  has  instituted  an  interesting 
comparison  between  it  and  the  passage  summarizing  Bellar- 
mine's  doctrine  in  Filmer's  Patriarcha,  which  we  have  already 
seen.2°  After  pointing  out  the  fact  that  there  is  a  copy  of  this 
latter  work  among  the  books  of  Jefferson  still  kept  together 

"  De  Legibus,  I,  c.  7,  n.  4. 
"  Ibid.,  pp.  507,  508. 

"  Internal  evidence  would  seem  to  show  that  Hamilton  had  "Wilson 's 
Considerations  before  him  when  he  wrote  the  Farmer  Refuted. 

"Letter  to  J.  Monroe,  1786,  vol.  I,  pp.  250,  251,  Congress  edition. 
"Catholic  Historical  Review,  vol.  Ill  (1917),  pp.  276-289. 


176  STATE   AND   CHURCH 

in  the  Library  of  Congress,  he  remarks  very  truly  that  neither 
in  Sidney  nor  in  Locke  nor  in  the  writings  of  any  other  author 
with  whom  Jefferson  was  familiar  is  there  as  complete  an 
epitome  of  the  doctrine  he  announced.  But  Mr.  Hunt  does  not 
seem  to  have  known  that  Jefferson  also  wrote  the  preamble  to 
the  Virginia  Declaration  of  Rights.  This  fact  is  attested  to 
by  Jefferson  himself  in  a  letter  to  Judge  Augustus  B.  Woodward, 
April  3,  1825,  where  he  says  ''The  fact  is  unquestionable,  that 
the  Bill  of  Rights,  and  the  Constitution  of  Virginia,  were  drawn 
originally  by  George  Mason  one  of  our  really  great  men,  and 
of  the  first  order  of  greatness.  The  history  of  the  preamble 
to  the  latter  is  this:  I  was  then  at  Philadelphia  with  Congress, 
and  knowing  that  the  Convention  of  Virginia  was  engaged  in 
forming  a  plan  of  government,  I  turned  my  mind  to  the  same 
subject,  and  drew  a  sketch  or  outline  of  a  constitution,  with  a 
preamble,  which  I  sent  to  Mr.  Pendleton,  president  of  the  con- 
vention, on  the  mere  possibility  that  it  might  suggest  something 
worth  incorporation  into  that  before  the  convention.  He  in- 
formed me  afterwards  by  letter,  that  he  received  it  on  the  day 
on  which  the  committee  of  the  whole  had  reported  to  the  House 
the  plan  they  had  agreed  to ;  that  that  had  been  so  long  in  hand, 
so  disputed  inch  by  inch,  and  the  subject  of  so  much  altercation 
and  debate ;  that  they  were  worried  with  the  contentions  it  had 
produced,  and  could  not,  from  mere  lassitude,  have  been  induced 
to  open  the  instrument  again ;  but  that  being  pleased  with  the 
preamble  to  mine,  they  adopted  it  in  the  House,  by  way  of  amend- 
ment to  the  report  of  the  eommittee ;  and  thus  my  preamble 
became  tacked  to  the  work  of  George  Mason.  The  Constitution, 
with  the  preamble,  was  passed  on  the  29th  of  June,  and  the 
Committee  of  Congress  had  only  the  day  before  that  reported 
to  that  body  the  draught  of  the  Declaration  of  Independence. 
The  fact  is,  that  the  preamble  was  prior  in  composition  to  the 
Declaration ;  and  both  having  the  same  object,  of  justifying  our 
separation  from  Great  Britain,  they  used  necessarily  the  same 
materials,  and  hence  their  similititde."^^ 

As  Jefferson  wrote  this  preamble  it  read :  ' '  That  all  men  are 
born  equally  free  and  independent  and  have  certain  inherent 

»'  Works,  vol.  VIII,  pp.  705,  706,  Washington  edition.     Italics  inserted. 


MEDIEVAL  INHERITANCE   OF  LIBERTY         177 

natural  rights,  of  which  they  cannot,  by  any  compact,  deprive 
or  divest  their  posterity;  among  which  are  the  enjoyment  of 
life  and  liberty,  with  the  means  of  acquiring  and  possessing 
property,  and  pursuing  and  obtaining  happiness  and  safety. 

"That  power  is,  by  God  and  nature,  vested  in,  and  conse- 
quently derived  from  the  people ;  that  magistrates  are  their 
trustees  and  servants,  and  at  all  times  amenable  to  them. 

''That  government  is,  or  ought  to  be  instituted  for  the  common 
benefit  and  security  of  the  people,  nation  or  community.  Of 
all  the  various  modes  and  forms  of  government  that  is  best, 
which  is  capable  of  producing  the  greatest  degree  of  happiness 
and  safety,  and  is  most  effectually  secured  against  the  danger 
of  maladministration.  And  that  whenever  any  government  shall 
be  found  inadequate,  or  contrary  to  these  purposes,  a  majority 
of  the  community  hath  an  indubitable,  inalienable  and  inde- 
feasible right  to  reform,  alter  or  abolish  it,  in  such  manner  as 
shall  be  judged  most  conducive  to  the  public  weal." 

Now  if  allowance  be  made  for  the  extreme  view  of  this  last 
statement  with  regard  to  the  inalienable  rights  of  a  majority,^^ 
and  if  the  clause  "that  magistrates  are  their  trustees  and 
servants  and  at  all  times  amenable  to  them"  be  understood  as  a 
positive  enactment  and  not  as  a  declaration  of  natural  right, 
these  three  paragraphs  bear  a  no  less  striking  resemblance  to 
the  passage  in  Filmer  than  does  the  theoretic  portion  of  the 
Declaration  of  Independence ;  and  since  the  author  of  the  one 
was  also  the  author  of  the  other  it  is  hard  to  avoid  the  conclusion 
that,  with  a  copy  of  Filmer  in  his  possession,  he  must  have 
included  the  latter 's  summary  of  Bellarmine  among  the  ma- 
terials used  in  the  composition  of  both  Declarations.  If  so  then 
the  American  denial  of  the  omnicompetence  of  Parliament  is 

''Burke  said  with  great  truth:  "We  are  so  little  affected  by  things 
which  are  habitual  that  we  consider  this  idea  of  the  decision  of  a  majority 
as  if  it  were  a  law  of  our  original  nature;  but  such  constructive  whole, 
residing  in  a  part  only,  is  one  of  the  most  violent  fictions  of  positive  law, 
that  ever  has  been  or  can  be  made  on  the  principles  of  artificial  incorpora- 
tion. Out  of  civil  society  nature  knows  nothing  of  it;  nor  are  men,  even 
when  arranged  according  to  civil  order,  otherwise  than  by  a  very  long 
training,  brought  at  all  to  submit  to  it. ' '  Appeal  from  the  New  to  the  Old 
Whigs;  Works,  vol.  V,  p.  97. 


178  STATE   AND   CHURCH 

no  more  than  a  reassertion  of  Bellarmine  and  Suarez'  denial 
of  the  Divine  Right  of  Kings. 

But  after  all  the  Declaration  merely  proclaimed  our  freedom 
from  tyranny  and  our  right  to  just  rule.  The  sound  enuncia- 
tion of  principles  it  contains  are  the  major  premise  to  the 
conclusion  "that  these  United  Colonies  are,  and  of  right  ought 
to  be,  free  and  independent  States;  that  they  are  absolved  from 
all  allegiance  to  the  British  Crown,  and  that  all  political  con- 
nection between  them  and  the  State  of  Great  Britain  is,  and 
ought  to  be,  totally  dissolved."  But  this  is  not  liberty.  Burke 
spoke  the  mind  of  all  Whigs  when  he  explained  that  "civil  free- 
dom is  not,  as  many  have  endeavored  to  persuade  you,  a  thing 
that  lies  hid  in  the  depth  of  abstruse  science.  It  is  a  blessing 
and  a  benefit,  not  an  abstract  speculation  ;  and  all  the  just  reason- 
ing that  can  be  put  upon  it  is  of  so  coarse  a  texture  as  perfectly 
to  suit  the  ordinary  capacities  of  those  who  are  to  enjoy,  and 
of  those  who  are  to  defend  it.  Far  from  any  resemblance  to 
those  propositions  in  geometry  and  metaphysics,  which  admit 
no  medium,  but  must  be  true  or  false  in  all  their  latitude,^^ 
social  and  civil  freedom,  like  all  other  things  in  common  life, 
are  variously  mixed  and  modified,  enjoyed  in  very  different 
degrees,  and  shaped  into  an  infinite  diversity  of  forms,  according 
to   the  temper   and   circumstances   of   every   community.      The 

"Writing  for  those  of  his  own  time  in  France  Buffier  said:  "The  habit 
of  subjecting  their  thought  to  established  law  has  caused  them  (juris- 
consults) to  frequently  confuse  these  two  expressions  'it  is  the  law'  and  'it 
is  reason.'  It  is  quite  true  that  the  saying,  'it  is  the  law'  bears  with  it  as  a 
consequence  that  'it  is  reason'  to  submit  to  it  in  this  country,  without 
regard  to  the  reasons  one  might  oppose  to  it,  even  were  they  better  than  the 
law  in  force.  But  instead  of  stopping  here  they  look  upon  the  law  in 
force  as  holding  the  place  of  universal  reason."     Oeuvres,  p.  213. 

Burke  wrote  in  the  same  sense  when  he  said :  ' '  Politics  ought  to  be 
adjusted,  not  to  human  reasonings,  but  to  human  nature;  of  which  the 
reason  is  but  a  part,  and  by  no  means  the  greatest  part."  Works,  vol.  I, 
p.  335. 

James  Wilson,  no  less  truly,  said:  "The  laws,  which  God  has  given  us, 
are  strictly  agreeable  to  our  nature;  they  are  adjusted  with  infallible 
correctness  to  our  perfection  and  happiness.  On  those,  which  we  make  for 
ourselves,  the  same  character,  as  deeply  and  as  permanently  as  possible, 
ought  to  be  impressed.  But  how,  unless  we  study  and  know  our  nature 
shall  we  make  laws  fit  for  it,  and  calculated  to  improve  it?"  Works, 
vol.  I,  p.  210. 


MEDIEVAL  INHERITANCE   OF  LIBERTY         179 

extreme  of  liberty  (which  is  its  abstract  perfection,  but  its  real 
fault)  obtains  nowhere,  nor  ought  to  obtain  anywhere;  because 
extremes,  as  we  all  know,  in  every  point  which  relates  either 
to  our  duties  or  satisfactions  in  life,  are  destructive  both  to 
virtue  and  enjoyment.  Liberty,  too,  must  be  limited  in  order 
to  be  possessed."" 

The  truth  of  this  was  fully  displayed  by  the  condition  that 
prevailed  in  the  Colonies  at  the  cessation  of  hostilities.  While 
war  lasted  they  acted  more  or  less  as  one ;  but  with  this  common 
motive  gone  and  with  the  former  bond  of  British  rule  now 
removed,  the  separate  Colonies,  none  of  which  had  ever  acted 
in  the  capacity  of  an  independent  sovereign  State,  threatened 
to  dissolve  into  anarchy.  Some  form  of  common  government  was 
clearly  necessary.  But  the  situation  was  new,  and  in  the  same 
sense  as  Burke  declared  in  his  speech  at  Bristol  that  ''in  a  dis- 
cordancy of  sentiments  it  is  better  to  look  to  the  nature  of  things 
than  to  the  humors  of  men,"^^  Washington,  at  the  opening 
of  the  convention,  when  some  of  the  members  were  advocating 
half  measures  as  more  likely  to  meet  the  approval  of  the  people 
than  any  thoroughgoing  reform,  saved  the  chances  for  "liberty 
connected  with  order""®  by  his  bold  and  characteristic  remark: 
"It  is  too  probable  that  no  plan  we  propose  will  be  adopted.  Per- 
haps another  dreadful  conflict  is  to  be  sustained.  If  to  please 
the  people,  we  offer  what  we  ourselves  disapprove,  how  can  we 
afterwards  defend  our  work?  Let  us  raise  a  standard  to  which 
the  wise  and  the  honest  can  repair.  The  event  is  in  the  hand 
of  God." 

That  the  principles  of  government  proclaimed  in  the  Declara- 
tion of  Independence  were  to  form  the  basis  of  the  new  order 
about  to  be  established  was  a  foregone  conclusion.  But  the  man- 
ner in  which  they  were  applied  by  those  who  drew  up  our 
Constitution  involved  a  philosophic  grasp  far  beyond  anything 
that  the  mere  knowledge  of  the  experience  of  the  past  could 
supply.  When  defending  the  work  of  the  Federal  Convention 
before  the  State  Convention  of  Pennsylvania,  Wilson  said  :  * '  The 

"  Works,  vol.  II,  p.  274. 

"Third  Speech  at  Bristol,  Works,  vol.  Ill,  p.  3. 

"Burke,  First  Speech  at  Bristol,  ibid.,  vol.  II,  p.  157. 


180  STATE   AND   CHURCH 

science  even  of  government  itself,  seems  yet  to  be  almost  in  its 
state  of  infancy.  Governments  in  general  have  been  the  result 
of  force,  of  fraud,  and  accident.  After  a  period  of  six  thousand 
years  has  elapsed  since  the  creation,  the  United  States  exhibit 
to  the  world,  the  first  instance,  as  far  as  we  can  learn,  of  a 
nation  unattacked  by  external  force,  unconvulsed  by  domestic 
insurrections,  assembling  voluntarily,  deliberating  fully,  and 
deciding  calmly,  concerning  that  system  of  government  under 
which  they  would  wish  that  they  and  their  posterity  should  live. 
The  ancients  so  enlightened  on  other  subjects  were  very  un- 
informed with  regard  to  this.  They  seem  scarcely  to  have  had 
any  idea  of  any  other  kinds  of  governments,  than  the  three 
simple  forms,  designed  by  the  epithets  monarchical,  aristocratical 
and  democratical.  I  know  that  much  and  pleasing  ingenuity 
has  been  exerted  in  modern  times,  in  drawing  entertaining 
parallels  between  some  of  the  ancient  constitutions  and  some  of 
the  mixed  governments  that  have  since  existed  in  Europe.  But 
I  much  suspect  that,  on  strict  examination,  the  instances  of 
resemblance  will  be  found  to  be  few  and  weak;  to  be  suggested 
by  the  improvements,  which  in  subsequent  ages,  have  been  made 
in  government  and  not  to  be  drawn  immediately  from  the 
ancient  constitutions  themselves,  as  they  were  intended  and 
understood  by  those  who  framed  them.  .  .  .  One  thing  is 
very  certain,  that  the  doctrine  of  representation  in  government 
was  altogether  unknown  to  the  ancients.  Now  the  knowledge  and 
practice  of  this  doctrine  is,  in  my  opinion,  essential  to  every 
system  that  can  possess  the  qualities  of  freedom,  wisdom  and 
energy. 

"It  is  worthy  of  remark,  and  the  remark  may,  perhaps,  excite 
some  surprise,  that  representation  of  the  people  is  not,  even 
at  this  day,  the  sole  principle  of  any  government  in  Europe. 
Great  Britain  boasts,  and  she  may  well  boast,  of  the  improve- 
ment she  has  made  in  politics,  by  the  admission  of  representa- 
tion: for  the  improvement  is  important  as  far  as  it  goes;  but 
it  by  no  means  goes  far  enough.  Is  the  executive  power  of 
Great  Britain  founded  on  representation  ?  This  is  not  pretended. 
Before  the  Revolution,  many  of  the  Kings  claimed  to  reign  by 
divine  right,  and  others  by  hereditary  right;  and  even  at  the 


MEDIEVAL  INHERITANCE  OF  LIBERTY         181 

Revolution,  nothing  farther  was  effected  or  attempted,  than  the 
recognition  of  certain  parts  of  an  original  contract,  supposed 
at  some  remote  period  to  have  been  made  between  the  King  and 
the  people.  A  contract  seems  to  exclude,  rather  than  to  imply 
delegated  power.  The  judges  of  Great  Britain  are  appointed 
by  the  Crown.  The  judicial  authority,  therefore,  does  not  depend 
upon  representation,  even  in  the  most  remote  degree.  Does 
representation  prevail  in  the  legislative  department  of  the 
British  government  ?  Even  here  it  does  not  predominate ;  though 
it  may  serve  as  a  check.  The  Legislature  consists  of  three 
branches:  the  king,  the  lords  and  the  commons.  Of  these  only 
the  latter  are  supposed  by  the  constitution  to  represent  the 
authority  of  the  people.  The  short  analysis  clearly  shows, 
to  what  a  narrow  corner  of  the  British  Constitution  the  principle 
of  representation  is  confined.  I  believe  it  does  not  extend 
farther,  if  so  far,  in  any  other  government  in  Europe.  For  the 
American  States  were  reserved  the  glory  and  the  happiness  of 
diffusing  this  vital  principle  through  all  the  constitutional  parts 
of  government.  Representation  is  the  chain  of  communication 
between  the  people,  and  those  to  whom  they  have  committed 
the  exercise  of  the  powers  of  government.  This  chain  may 
consist  of  one  or  more  links;  but  in  all  cases  it  should  be  suf- 
ficiently strong  and  discernible."^^ 

Later  after  the  Constitution  had  been  ratified,  Hamilton  ex- 
plained how  "in  the  theory  of  all  the  American  Constitutions, 
offices  are  holden  of  the  government,  in  other  words,  of  the 
people  through  the  government.  The  appointment  is  indeed 
confided  to  a  particular  organ,  and  in  instances  in  which  it  is 
not  otherwise  provided  by  the  Constitution  or  the  laws,  the  re- 
moval of  the  officer  is  left  to  the  pleasure  or  discretion  of  that 
organ.  But  both  these  acts  suppose  merely  an  instrumentality 
of  the  organ,  from  the  necessity  or  expediency,  of  the  people's 
acting  in  such  case  by  an  agent.  They  do  not  suppose  the  sub- 
stitution of  the  agent  to  the  people,  as  the  object  of  the  fealty 
or  allegiance  of  the  officer.  "^^ 

We  have  seen  already  how  Suarez  was  the  first  to  admit  clearly 

*' Works,  vol.  I,  pp.  530-533. 
«  Works,  vol.  Vin,  pp.  354-355. 


182  STATE   AND   CHURCH 

the  legitimacy  of  such  a  form  of  government.  But  for  the 
practical  working  out  of  its  conception  much  else  of  a  more 
purely  theoretic  character  must  be  presupposed  in  the  minds 
of  those  who  effected  the  task.  For  the  very  idea  implies  an 
exceedingly  definite  theory  of  the  true  nature  of  the  State  and 
its  limitations.  In  the  former  chapter  it  was  shown  how  thor- 
oughly lacking  the  ancients  were  in  this  regard.  By  way  of 
recapitulation  and  corroboration  of  what  was  there  maintained 
we  give  the  following  from  Francis  Lieber.  "The  ancient  science 
of  politics  is  what  we  would  term  the  art  of  government,  that 
is  'the  art  of  regulating  the  State,  and  the  means  of  preserving 
and  directing  it.'  The  ancients  set  out  from  the  idea  of  the 
State,  and  deduce  every  relation  of  the  individual  to  it  from 
this  first  position.  The  moderns  ( ?)  acknowledge  that  the  State, 
however  important  and  indispensable  to  mankind,  however  natu- 
ral, and  though  of  absolute  necessity,  still  is  but  a  means  to 
obtain  certain  objects,  both  for  the  individual  and  for  society 
collectively,  in  which  the  individual  is  bound  to  live  by  his 
nature.  The  ancients  had  not  that  which  the  moderns  ( ?)  under- 
stand by  jus  naturale,  or  the  law  which  flows  from  the  individual 
rights  of  man  as  man,  and  serves  to  ascertain  how  by  means 
of  the  State,  those  objects  are  obtained  which  justice  demands 
for  every  one.  On  what  supreme  power  rests,  what  the  extent 
and  limitations  of  supreme  power  ought  to  be  according  to  the 
fundamental  idea  of  the  State, — these  questions  have  never 
occupied  the  ancient  votaries  of  political  science.  "^^ 

But  in  a  footnote  Lieber  adds:  ''This  was  written  in  the 
year  1837.  Since  then,  events  have  occurred  in  France  which 
may  well   cause   the   reader  to   reflect  whether,  after    all,  the 

"On  Civil  Liberty  and  Self  Government,  pp.  46-47.  Hamilton  likewise 
noted  this  fact.  In  the  convention  of  New  York  he  reminded  those  present 
that,  ' '  The  ancient  democracies,  in  which  the  people  themselves  deliberated, 
never  possessed  one  feature  of  good  government.  Their  very  character  was 
tyranny;  their  figure  deformity.  When  they  assembled,  the  field  of  debate 
presented  an  ungovernable  mob,  not  only  incapable  of  deliberation,  but 
prepared  for  every  enormity.  In  these  assemblies  the  enemies  of  the  people 
brought  forward  their  plans  of  ambition  systematically.  They  were 
opposed  by  their  enemies  of  another  party;  and  it  became  a  matter  of  con- 
tingency whether  the  people  subjected  themselves  to  be  led  blindly  by  one 
tyrant  or  by  another. ' '    Works,  vol.  II,  p.  22. 


MEDIEVAL  INHERITANCE  OF  LIBERTY         183 

author  was  entirely  correct  in  drawing  this  peculiar  line  between 
antiquity  and  modern  times."  He  might  just  as  well  have 
included  England  and  Germany  in  this  remark.  For  Bentham 
had  already  laid  the  cornerstone  of  the  modern  English  Utili- 
tarian system  of  government  with  the  assertion  that  "the  field, 
if  one  may  say  so,  of  the  supreme  governor's  authority,  though 
not  infinite  must  unavoidably,  I  think,  unless  where  limited  by 
express  c&nventian  (whereby  one  State  has,  upon  terms,  sub- 
mitted itself  to  the  government  of  another),  be  allowed  to  be 
indefinite.  "^°  While  in  Germany  where  the  influence  of  Roman 
law  in  its  Pagan  form  was  dominant,  in  consequence  of  the 
writings  of  Grotius,"  Puffendorf  and  Wolff,  strange  notions  as 
to  the  personality  of  the  State  had  already  been  enunciated.  As 
Maitland,  one  of  the  English  disciples  of  the  German  school, 
has  said  "The  adjectives  which  are  often  used  to  qualify  this 
personality  are  open  to  serious  objection,  since  they  seem  to 
speak  to  us  of  some  trick  or  exploit  performed  by  lawyers  and 
to  suggest  a  wide  departure  of  legal  theory  from  fact  and  com- 
mon opinion.  "^^  The  root  of  this  confusion  was  that  in  Roman 
law  "personality"  was  used  to  mean  a  privilege  conferred 
upon  the  individual  by  the  State  at  the  moment  he  became  a 
citizen.  Not  being  inherent  anywhere  it  could  be  no  more  than 
a  mere  fiction  emptied  of  all  reality.     The  result  of  this  is  well 

"•A  Tragment  on  Government,  p.  217,  edited  by  F.  C.  Montague. 

"Both  Hamilton  and  Wilson  were  aware  of  the  grave  defects  in  Grotius. 
Speaking  of  the  principles  of  -Roman  law  the  first  said :  "A  deference  for 
those  maxims  has  misled  writers  who  have  professionally  undertaken  to 
teach  the  principles  of  national  ethics.  ...  We  find  the  learned  Grotius 
quotes  and  adopts,  as  the  basis  of  his  opinions,  the  rules  of  Eoman  law; 
though  he  in  several  particulars,  qualifies  them  by  the  humane  innovations 
of  later  times."     Camillus,  Works,  vol.  X,  p.  427. 

Wilson  writing  explicitly  of  Grotius  said :  "He  was  unfortunate  in  not 
getting  out  on  right  and  solid  principles.  His  celebrated  book  of  the 
Eights  of  War  and  Peace  is  indeed  useful;  but  it  ought  not  to  be  read 
without  a  due  degree  of  caution:  nor  ought  all  his  doctrines  to  be  received, 
without  the  necessary  grains  of  allowance."     Works,  vol.  I,  131. 

This  is  particularly  interesting  in  view  of  the  fact  that  the  reason 
alleged  by  Andrew  D.  White,  the  American  representative  at  The  Hague, 
for  the  exclusion  of  Pope  Leo  XIII  from  the  conferences,  was  that  the 
De  Jure  Belli  ac  Pacis  was  on  the  Index  at  the  time;  which  simply  meani 
that  it  was  "not  to  be  read  without  a  due  degree  of  caution." 

"  History  of  English  Law,  vol.  I,  p.  489. 


184  STATE   AND   CHURCH 

yummed  up  by  Johann  Gustav  Droysen  in  his  Outline  of  the 
Principles  of  History  where  he  says  "The  law  of  authority  is 
valid  in  the  political  world  like  that  of  gravity  in  the  world  of 
matter.  .  .  .  Only  the  State  has  the  duty  or  the  right  to  be 
the  authority  in  this  sense.  Wherever  justice,  property,  society, 
wherever  even  the  church,  the  people  or  the  community  come 
into  the  position  of  authority,  the  nature  of  the  State  is  either 
not  yet  discovered  or  lost  in  degeneracy.  Public  authority  is 
highest  where  the  fullest  labor,  health  and  freedom  of  all  the 
moral  spheres  feed  it.  The  State  is  not  related  to  the  other 
moral  spheres  merely  as  they  to  one  another,  but  embraces 
them  all  within  its  own  scope.  Under  its  protection  and  laws, 
under  its  guardianship  and  responsibility  they  all  move  forward 
to  its  s'alvation  or  ruin. 

"The  State  is  not  the  sum  of  individuals  whom  it  comprehends, 
nor  does  it  arise  from  their  will,  nor  does  it  exist  on  account 
of  their  will. ' ' 

In  diametric  opposition  to  this  Suarez  had  maintained,  when 
explaining  how  it  is  possible  for  a  law  to  have  reference  to  a 
single  individual  and  yet  be  a  true  law,  that  "law  applies  to  a 
person  (meaning  one  who  is  sui  juris,  i.  e.,  endowed  with  intel- 
lect and  free  will)  therefore  it  has  reference  primarily  to  a 
true  person  rather  than  to  a  fictitious  one,  for  fiction  always 
supposes  the  truth  of  which  it  is  an  imitation.  But  a  community 
is  a  fictitious  person  whereas  each  individual  man  is  a  true 
person.  "^^  Burke,  again,  in  the  course  of  an  argument  directed 
against  certain  radical  views,  that  were  showing  their  head  in 
his  day,  declared:  "they  who  plead  an  absolute  right  (to  repre- 
sentation) cannot  be  satisfied  with  anything  short  of  personal 
representation,  because  all  natiiral  rights'  must  be  the  rights  of  in- 
dividuals as  by  nature  there  is  no  such  thing  as  politic  or  cor- 
porate personality,  all  these  ideas  are  mere  fictions  of  law,  they 
are  creatures  of  voluntary  institution ;  men  as  men  are  individ- 
uals, and  nothing  else."^*  Finally  James  Wilson  stated  the 
correct  American  doctrine  implicit  in  our  Constitution.  "Per- 
sons," said  he,  "are  divided  into  two  kinds— natural  and  arti- 

"  De  Legibus,  I,  e.  6,  n.  7. 
•*  Works,  vol.  Ill,  p.  353. 


MEDIEVAL  INHERITANCE  OF  LIBERTY         185 

ficial.  Natural  persons  are  formed'  by  the  great  Author  of 
nature.  Artificial  persons  are  the  creatures  of  human  sagacity 
and  ■contrivance;  and  are  framed  and  intended  for  the  purposes 
of  government  and  society."  Then  a  few  pages  further  on  he 
expands  this  into  a  definition  of  the  State  which  reads:  "In 
free  States,  the  people  form  an  artificial  person  or  body  politic, 
the  highest  and  noblest  that  can  be  known.  They  form  that 
moral  person  .  .  .  i.  e.,  a  complete  body  of  free  natural  per- 
sons, united  together  for  their  common  benefit  as  having  an 
understanding  and  a  will ;  as  deliberating,  and  resolving,  and 
acting;  as  possessed  of  interests  which  it  ought  to  manage;  as 
enjoying  rights  which  it  ought  to  maintain ;  and  as  lying  under 
obligations,  which  it  ought  to  perform.  To  this  moral  person, 
we  assign  by  way  of  eminence,  the  dignified  appellation  of 
State."^' 

The  manner  in  which  this  idea  was  applied  in  the  framing  of 
the  Constitution  has  already  been  described  in  the  words  of 
Wilson  and  of  Hamilton,  but  the  theory  in  the  case,  together 
with  Wilson 's  thoroughly  Suaresian  point  of  view  in  the  matter, 
is  well  brought  out  in  the  following  where,  treating  of  the 
question  of  sovereignty,  he  argues  "Let  us  turn  our  eyes,  for 
a  while  from  books  and  systems:  let  us  fix  them  on  men  and 
things.  While  those,  who  were  about  to  form  a  soeiety,  continued 
separate  and  independent  men,  they  possessed  separate  and 
independent  powers  and  rights.  When  the  society  was  formed, 
it  possessed  jointly  all  the  previously  separate  and  independent 
powers  and  rights  of  the  individuals  who  formed  it  and  all  the 
other  powers  and  rights,  which  result  from  the  soeial  union. 
The  aggregate  of  these  powers  and  these  rights  compose  the 
sovereignty  of  the  society  or  nation.  In  the  society  or  nation 
this  sovereignty  originally  exists.  For  whose  benefit  does  it 
exist?  For  the  benefit  of  the  soeiety  or  nation.  Is  it  necessary 
for  the  benefit  of  the  society  or  nation,  that  the  moment  it 
exists,  it  should  be  transferred? — This  question  ought,  undoubt- 
edly, to  be  seriously  considered,  and,  on  the  most  solid  grounds, 
to  be  resolved  in  the  affirmative,  before  the  transfer  is  made. 
Has  this  ever  been  done?     Has  it  ever  been  evinced,  by  un- 

»  Works,  vol.  II,  pp.  3,  6. 


186  STATE   AND   CHURCH 

answerable  argumen'ts,  that  it  is  necessary  to  the  benefit  of  a 
society  to  transfer  all  those  rights  and  powers,  which  the  mem- 
bers once  possessed  separately,  but  which  the  society  now  pos- 
sesses jointly?  I  think  such  a  position  has  never  been  evinced 
to  be  true.  Those  powers  and  rights  were,  I  think,  coUected 
to  be  exercised  and  enjoyed,  not  to  be  alienated  and  lost.  All 
these  powers  and  rights,  indeed,  cannot,  in  a  numerous  and  ex- 
tended society,  be  exercised  personally;  but  they  may  be  exer- 
cised by  representation."^^ 

The  Constitution  as  first  proposed  was  intended  as  a  resolu- 
tion of  this  problem  in  the  sense  that  instead  of  chartered  lib- 
erties granted  by  the  Crown,  as  had  been  the  case  under  the 
rule  of  Kings  in  England  since  before  the  days  of  Magna  Charta, 
there  was  to  be  henceforth  in  the  United  States  chartered 
powers  granted  by  the  people  to  their  government.  It  was  for 
this  reason  that  those  who  understood  this  new  principle  most 
clearly  insisted  that  there  should  be  no  question  of  a  Bill  of 
Rights  since  the  very  idea  of  reserving  anything  would  only  tend 
to  confusion,  as  it  would  give  color  to  the  alien  notion  that  the 
government  possessed  powers  not  delegated. 

Beyond  the  problem,  however,  of  determining  the  practical 
basis  of  government  on  the  ground  of  solid  theoretic  principle 
there  was  the  further  question  of  settling  the  character  of  the 
union  that  should  exist  among  the  Colonies.  Wilson,  again,  in 
the  State  Convention  of  Pennsylvania  gave  the  best  outline  of 
the  plan  proposed  to  the  people  for  adoption.  Among  his  many 
observations  on  this  topic  he  pointed  out  that  ' '  a  division  of  the 
United  States  into  a  number  of  separate  confederacies  would 

'"Ibid.,  vol.  I,  pp.  168,  169.  Italics  inserted.  Locke  generalized  too 
exclusively  from  the  single  fact  before  him— the  English  government  of  his 
own  day— to  contemplate  the  possibility  of  the  people  retaining  power  in  its 
own  hands.  Suarez,  as  we  have  seen  above,  did  contemplate  such  a  possi- 
bility and  admitted  its  legitimacy  under  certain  circumstances.  Locke's 
doctrine  of  the  ' '  executive  power  of  the  law  of  nature ' '  on  the  other  hand 
contradicts  fundamental  principles  in  the  scholastic  writers  and  furnished 
grounds  for  the  Lockians,  previously  mentioned,  and  for  Eousseau  to  claim 
that  the  aggregate  of  individuals  contracting  into  society  cannot  surrender 
authority  to  the  government.  By  the  use  of  the  word  "necessary"  Wilson 
shows  his  agreement  with  Suarez,  viz.,  that  it  is  a  question  of  contingent 
fact  or  of  the  legitimate  agreement  of  a  people  to  determine  its  form  of 
government  in  this  particular  manner. 


MEDIEVAL  INHERITANCE   OF  LIBERTY         187 

probably  be  an  unsatisfactory  andl  an  unsuccessful  experiment. 
The  remaining  system  which  the  American  States  may  adopt  is, 
a  union  of  them  under  one  confederate  republic.  It  will  not  he 
necessiary  to  employ  much  time  or  many  arguments  to  show 
that  this  is  the  most  eligible  system  that  can  be  proposed.  By 
adopting  this  system,  the  vigor  and  decision  of  a  wide-spreading 
monarchy  may  be  joined  with  the  freedom  and  beneficence 
of  a  contracted  republic.  The  extent  of  territory,  the  diversity 
of  climate  and  soil,  the  number,  and  greatness,  and  connection 
of  lakes  and  rivers,  with  which  the  United  States  are  intersected 
and  almost  surrounded,  all  indicate  an  enlarged  government  to 
be  fit  and  advantageous  for  them.  The  principles  and  disposi- 
tions of  their  citizens  indicate,  that  in  this  government  liberty 
shall  reign  triumphant.  Such  indeed  have  been  the  general 
opinions  and  wishes  entertained  since  the  era  of  our  independ- 
ence. If  those  opinions  and  wishes  are  as  well  founded  as  they 
are  general,  the  late  convention  were  justified  in  proposing  to 
their  constituents  one  confederate  republic,  as  the  best  system 
of  national  government  for  the  United  States.  "^'^  Several 
months  later  Hamilton  also  insisted  in  the  convention  of  New 
York  that  ' '  while  the  Constitution  continues  to  be  read,  and  its 
principles  known,  the  States  must  by  every  rational  man,  be 
considered  as  essential  component  parts  of  the  union ;  and  there- 
fore, the  idea  of  sacrificing  the  former  to  the  latter  is  totally 
inadmissible. ' '  ^^ 

It  has  generally  been  thought  that  the  idea  of  a  conferedate 
repulblic  was  suggested  to  the  minds  of  those  who  framed  the 
Constitution  by  Montesquieu  and  it  is  no  doubt  true  that  they 
did  quote  him.  But  the  sense  which  they  attributed  to  the  term 
in  its  relation  to  what  was  actually  set  down  in  the  plan  for 
the  new  established  order  of  government  was  something  very 
foreign  to  the  mind  of  Montesquieu.  Luther  Martin  made  this 
clear  when  in  his  Letter  on  the  Federal  Convention  he  com- 
plained that  ''a  majority  of  the  convention  hastily  and  incon- 
siderately, without  condescending  to  make  a  fair  trial,  in  their 
great  wisdom,   deciding  that   a  kind   of  government  which  a 

"  lUd.,  pp.  537,  538. 
•*  Works,  vol.  II,  p.  45, 


188  STATE   AND   CHURCH 

Montesquieu  and  a  Price  have  declared  the  best  calculated  of 
any  to  preserve  internal  liberty  and  to  enjoy  external  strength 
and  security,  and  the  only  one  by  which  a  large  continent  can 
be  connected  and  united  consistent  with  the  principles  of  liberty, 
was  totally  impractica/ble,  and  they  acted  accordingly."^®  The 
fact  was  that  Montesquieu's  idea  which  was  the  old  idea  of 
confederate  sovereign  States  united  on  a  basis  of  compact  did 
not  answer  the  problem  as  it  stood  out  before  the  majority  in 
the  convention.  Wilson  expressed  what  seems  to  have  been  the 
prevailing  ground  for  decision  when  explaining  how  ' '  our  wants, 
our  talents,  our  atifections,  our  passions,  all  tell  us  that  we  were 
made  for  a  state  of  society.  But  a  state  of  society  could  not 
be  supported  long  or  happily  without  some  civil  restraint.  It  is 
true  that  in  a  state  of  nature,  any  one  individual  may  act  un- 
controlled by  others;  but  it  is  equally  true  that,  in  such  a  state, 
every  other  individual  may  act  uncontrolled  by  him.  Amidst 
this  universal  independence  the  dissessions  and  animosities  be- 
tween interfering  members  of  the  society  would  be  numerous 
and  ungovernable.  The  consequence  would  be,  that  each  mem- 
ber, in  such  a  natural  state,  would  enjoy  less  liberty,  and  suffer 
more  interruption,  than  he  would  in  a  regulated  society.  Hence 
the  universal  introduction  of  government  of  some  kind  or  other 
into  the  social  state.  The  liberty  of  every  member  is  increased 
by  this  introduction,  for  each  gains  more  by  the  limitation  of 
the  freedom  of  eveiy  other  member,  than  he  loses  by  the  limita- 
tion of  his  own.  The  result  is,  that  civil  government  is  necessary 
to  the  perfection  and  happiness  of  man.  In  forming  this  govern- 
ment, and  carrying  it  into  execution,  it  is  essential  that  the 
interest  and  authority  of  the  whole  community  should  be  bind- 
ing on  every  part  of  it. ' '  Then  having  noted  that  just  as  civil 
government  is  necessary  to  the  perfection  of  society  so  civil 
liberty  is  necessary  to  the  perfection  of  civil  government  he 
proceeds  to  explain  this  last  by  describing  it  in  its  nature  and 
kinds.  Said  he:  ''Civil  liberty  is  natural  liberty  itself,  divested 
only  of  that  part,  which  placed  in  the  government,  produces 
more  good  and  happiness  to  the  community,  than  if  it  had 
remained  in  the  individual.  Hence  it  follows,  that  civil  liberty, 
••Elliot's  Debates,  vol,  I,  p.  405. 


MEDIEVAL  INHERITANCE  OF  LIBERTY         189 

while  it  resigns  a  part  of  natural  liberty,  retaints  the  free 
and  generous  exercise  of  all  the  human  faculties  so  far  as  it  is 
compatible  with  the  public  welfare/" 

"In  considering  and  developing  the  nature  and  end  of  the 
system  before  us,  it  is  necessary  to  mention  another  kind  of 
liberty,  which  has  not  yet,  asi  far  as  I  know,  received  a  name. 
I  shall  distinguish  it  by  the  appellation  of  federal  liberty.  When 
a  single  government  is  instituted,  the  individuals  of  which  it  is 
composed  surrender  to  it  a  part  of  their  natural  independence, 
which  they  before  enjoyed  asi  men.  When  a  confederate  republic 
is  instituted,  the  communities  of  which  it  is  composed  surrender 
to  it  a  part  of  their  political  independence,  which  they  before 
enjoyed  as  states.  The  principles  which  directed,  in  the  former 
case,  what  part  ought  to  be  retained,  will  give  similar  directions 
in  the  latter  case.  The  states  should  resign  to  the  national 
government  that  part,  and  that  part  oMy,  of  their  political 
liberty,  which,  placed  in  that  government,  will  produce  more 
good  to  the  whole,  than  if  it  had  remained  in  the  several  states. 
While  they  resign  this  part  of  their  political  liberty,  they  retain 
the  free  and  generous  exercise  of  all  their  other  faculties  as 
states,  so  far  as  is  compatible  with  the  welfare  of  the  general 
and  superintending  confederacy."*^ 

We  have  seen  already  how  this  idea  of  subordinate  sovereign 
powers,  with  sovereignty  derived  from  the  same  source  whence 
that  of  the  central  supervising  power  is  held,  is  found  in  Bellar- 
mine  andi  how  closely  Wilson's  application  of  the  principle  of 
consent  to  the  question  of  the  division  of  sovereignty  tallies  with 
his.  But  the  clear  distinction  between  the  old  idea  of  Montes- 
quieu and  the  new  American  theory  of  a  confederate  republic 

"  This  is  not  to  be  understood  in  Spencer 's  sense  that  ' '  every  man  may 
claim  the  fullest  liberty  to  exercise  his  faculties  compatible  with  the  posses- 
sion of  like  liberty  by  every  other  man."  Social  Statics  (1892),  p.  36,  but 
should  be  read  in  the  light  of  Madison 's  notable  sentence :  "If  justice, 
good  faith,  honor,  gratitude,  all  the  other  qualities  which  ennoble  the 
character  of  a  nation,  and  fulfil  the  ends  of  government,  be  the  fruits  of 
our  establishments,  the  cause  of  liberty  will  acquire  a  dignity  and  lustre 
which  it  has  never  yet  enjoyed ;  and  an  example  will  be  set  which  cannot  but 
have  the  most  favorable  influence  on  the  rights  of  mankind."  Works, 
vol.  IV,  p.  453. 

"  Works,  vol.  I,  pp.  535,  536. 


190  STATE   AND   CHURCH 

was  stated  even  more  explicitly  by  Madison  wko  considered 
"the  difference  between  a  system  founded  on  the  legislatures 
only,  and  one  founded  on  the  people,  to  be  the  true  difference 
between  a  league  or  treaty,  and  a  constitution.  The  former,  in 
point  of  moral  ohligaiion,  might  be  as  inviolable  as  the  latter. 
In  point  of  political  operation,  there  were  two  important  dis- 
tinctions in  favor  of  the  latter.  First,  a  law  violating  a  treaty 
ratified  by  a  pre-existing  law  might  be  respected  as  a  law,  though 
an  unwise  or  perfidious  one.  A  law  violating  a  constitution 
established  by  the  people  themselves  would  be  considered  by  the 
judges  as  null  and  void.  Secondly,  the  doctrine  laid  down  by 
the  Law  of  nations  in  the  case  of  treaties  is,  that  a  breach  of 
any  one  article  by  any  of  the  parties  frees  the  other  parties 
from  their  engagements.  In  the  case  of  a  union  of  people  under 
one  constitution,  the  nature  of  the  fact  has  always  been  under- 
stood to  exclude  such  an  interpretation."''^ 

Such  then  was  the  theory  which,  beginning  with  the  principles 
enunciated  in  the  Declaration  of  Independence,  was  finally 
evolved  into  the  brief  but  comprehensive  statement. 

"We  the  People  of  the  United  States,  in  order  to  form  a  more 
perfect  Union,  establish  Justice,  insure  domestic  tranquility, 
provide  for  the  common  defence,  promote  the  general  Welfare, 
and  secure  the  Blessings  of  Liberty  to  ourselves  and  our  Poster- 
ity, do  ordain  and  establish  this  Constitution  for  the  United 
States  of  America." 

As  Madison  so  well  expressed  it  "in  proportion  to  the  im- 
portance of  the  instruments,  every  word  of  which  decided  a 
question  between  power  and  liberty ;  in  proportion  to  the  solem- 
nity of  acts  proclaiming  the  will,  and  authenticated  by  the  seal 
of  the  people,  the  only  earthly  source  of  authority,  ought  to 
be  the  vigilance  with  which  they  are  guarded  by  every  citizen 
in  private  life,  and  the  circumspection  with  which  they  are 
executed  by  every  citizen  in  public  trust.  "^^  That  there  was 
absolutely  nothing  of  Rousseau  in  all  this  or  of  Rousseau 's  notion 
of  the  "general  will"  is  perfectly  evident,  not  merely  from  what 
has  been  shown  thus  far,  but  from  the  remarks  of  Madison 

"  Foster  on  the  Constitution,  vol.  I,  p.  95. 
"Works,  vol,  IV,  pp.  467,  468.     Italics  ours. 


MEDIEVAL  INHERITANCE  OF  LIBERTY         191 

himself,  when,  writing  on  the  question  of  universal  peace,  he 
said:  ''Wars  may  be  divided  into  two  classes;  one  flowing  from 
the  mere  will  of  the  government ;  the  other  according  with  the 
will  of  the  society  itself. 

''Those  of  the  first  class  can  no  otherwise  be  prevented  than 
by  such  a  reformation  of  the  government  as  may  identify  its 
will  with  the  will  of  the  society.  The  project  of  Rousseau 
(of  a  confederation  of  sovereigns,  under  a  council  of  deputies) 
was,  consequently,  as  preposterous  as  it  was  impotent.  Instead 
of  beginning  with  an  external  application,  and  even  precluding 
internal  remedies,  he  ought  to  have  commenced  with,  and  chiefly 
relied  on,  the  latter  prescription. 

"He  should  have  said,  whilst  war  is  to  depend  on  those  whose 
ambition,  whose  revenge,  whose  avidity,  or  whose  caprice  may 
contradict  the  sentiment  of  the  community,  and  yet  be  controlled 
by  it;  whilst  war  is  to  be  declared  by  those  who  are  to  spend 
the  public  money,  not  by  those  who  are  to  pay  it,  by  those 
who  are  to  direct  the  public  forces,  not  by  those  who  are  to 
support  them;  by  those  whose  power  is  to  be  raised,  not  by  those 
whose  chains  may  be  riveted,  the  disease  mnst  continue  to  be 
hereditary,  like  the  government  of  which  it  is  the  offspring.  As 
the  first  step  towards  a  cure,  the  government  itself  must  be  regen- 
erated. Its  will  must  be  made  subordinate  to,  or  rather  the 
same  with  the  will  of  the  community. 

"Had  Rousseau  lived  to  see  the  Constitutions  of  the  United 
States  and  of  France  (?),  his  judgment  might  have  escaped 
the  censure  to  which  his  project  has  exposed  it. 

"The  other  class  of  wars,  corresponding  with  the  public  will, 
are  less  susceptible  of  remedy." 

"There  are  antidotes,  nevertheless,  which  may  not  be  without 
their  efficacy.  As  wars  of  the  first  class  were  to  be  prevented 
by  subjecting  the  will  of  the  government  to  the  will  of  the 
society,  those  of  the  second  can  only  be  controlled  by  subjecting 
the  will  of  the  society  to  the  reason  of  the  society;  by  establish- 
ing permanent  and  constitutional  maxims  of  conduct,  which 
may  prevail  over  occasionail  impressions,  and  inconsiderate 
pursuits. ' '" 

**  Ibid.,  p.  471.     Italics  inserted. 


192  STATE   AND   CHURCH 

But  even  this  was  not  held  to  be  ultimate,  for  reason  itself 
is'  not  to  be  understood  here  in  the  sense  in  which  Frenchman 
of  the  Enlightenment  used  it.     Suarez  had  said  with  regard  to 
the   derivation   of   the  power   to  make   laws:      "The  common 
opinion  seems  to  be  that  this  power  is  granted  immediately  by 
God  as  the  author  of  nature  so  that  men,  as  it  were,  dispose 
the  matter  and  constitute  the  subject  capaible  of  such  a  power; 
while  God,  as  it  were,  supplies  the  form  by  giving  it.     For 
granted  the  will  of  a  number  of  men  to  unite  in  forming  a  body 
politic  it  is  not  in  the  power  to  prevent  such  a  jurisdiction 
(since  to  wil  to  form  a  society  without  any  power  to  regulate 
it  is  to  will  a  contradiction).     Thais  in  marriage  the  husband 
Is  head  over  the  wife  in  consequence  of  the  determination  of 
the  Author  of  nature  and  not  as  a  result  of  the  wife's  will  in 
the  matter.    For  though  they  freely  contract  the  bond  of  matri- 
mony nevertheless,  once  it  is  contracted  they  cannot  prevent  that 
superiority  properly  resides  in  the  husband.     Therefore,  this 
power  of  jurisdiction  is  immediately  from  God  since  it  has  no 
prior  or  immediate  existence  in  any  other.     Another  proof  is 
that  this  power  includes  certain  acts  which  seem  to  exceed  all 
human  faculties  in  so  far  as  they  are  discoverable  in   single 
individuals,  which  is  a  sign  that  this  power  is  not  derived  from 
men  but  from  God.     The  first  of  these  is  capital  punishment. 
As   God   alone  is  master  of   life.   He  alone  could  grant   this 
power.     .     .     .     Then  there  is  the  power  the  legislator  has  of 
binding  in  conscience  which  seems,  particularly  to  pertain  to  the 
power  of  God.     Finally  there  is  the  power  of  avenging  injuries 
done  to  individuals  which  must  come  from  God  otherwise  men 
might  usurp  other  methods  of  avenging  injuries,  which  is  con- 
trary to  natural  justice.     .    .    .    This  power  is  granted  by  God 
not  through  any  act  or  concession  distinct  from  creation,  since 
such  a  concession  would  have  to  be  made  known  by  revelation 
which  is  clearly  not  the  case.     Besides  under  such  conditions 
this  power  of  jurisdiction  would  not  be  a  natural  power.     It  is 
given,  therefore,  as  one  of  the  properties  consequent  to  nature, 
that  is:  by  means  of  a  dictate  of  reason  manifestive  of  the  fact 
that  God  has  made  sufficient  provision  for  the  human  race  and 


MEDIEVAL  INHERITANCE   OF  LIBERTY         193 

consequently  has  given  it  whatever  power  is  necessary  for  its 
conservation  and  proper  government."*'"' 

In  thorough  conformity  with  this,  Washington,  in  his  Fare- 
well Address  declared: 

"To  the  efficacy  and  permanency  of  your  Union,  a  govern- 
ment for  the  whole  is  indispensablei. — No  alliances,  however 
strict  between  the  parts  can  be  an  adequate  substitute. — They 
must  inevitably  experience  the  infractions  and  interruptions 
which  all  alliances  in  all  times  have  experienced.  Sensible  of 
this  momentous  truth,  you  have  improved  upon  your  first  essay, 
by  the  adoption  of  a  Constitution  of  Government,  better  cal- 
culated than  your  former  for  an  intimate  union  and  for  the 
efficacious  management  of  your  common  concerns. — This  govern- 
ment, the  offspring  of  your  own  choice  uninfluenced  and  unawed, 
adopted  upon  full  inrvestigation  and  mature  deliberation,  com- 
pletely free  in  its  principles,  in  the  distribution  of  its  powers, 
uniting  security  with  energy,  and  containing  within  itself  a 
provision  for  its  own  amendment  has  a  just  claim  to  your  con- 
fidence and  your  support. — Respect  for  its  authority,  compliance 
with  its  laws,  acquiescence  in  its  measures,  are  duties  enjoined 
by  the  fundamental  maxims  of  true  liberty. — The  basis  of  our 
political  systems  is  the  right  of  the  people  to  make  and  to  alter 
their  Constitutions  of  Government. — But  the  Constitution  which 
at  any  time  exists,  'till  changed  by  the  explicit  and  authentic  act 
of  the  whole  people,  is  sacredly  obligatory  on  all. — The  very 
idea  of  the  power  and  the  right  of  the  People  to  establish 
Government  presupposes  the  duty  of  every  individual  to  obey 
the  established  Government.'* 

From  the  original  draft  of  this  address,  which  was  written 
by  Hamilton,  it  is  clear  that  the  latter  went  even  further.  In 
a  passage  that  Washington  seems  to  have  amended  slightly  for 
evident  prudential  reasons  Hamilton  said:  "In  all  those  dis- 
positions which  promote  political  happiness,  religion  and  moral- 
ity are  essential  props.  In  vain  does  he  claim  the  praise  of 
patriotism,  who  labors  to  subvert  and  undermine  these  great 
pillars  of  human  happiness,  these  firmest  foundations  of  the 
duties  of  men  and  citizens.     The  mere  politician,  equally  with 

"  De  Legibus,  III,  c.  3,  n.  4,  5, 


194  STATE   AND   CHURCH 

the  pious  mail,  ought  to  respect  and  cherish  them.  A  volume 
could  not  trace  all  their  connections  with  private  and  public 
happiness.  Let  it  simply  be  asked,  where  is  the  security  for 
property,  for  reputation,  for  life,  if  the  sense  of  moral  and 
religious  obligation  deserts  the  oaths  which  are  administered 
in  courts  of  justice?  Nor  ought  we  to  flatter  ourselves  that 
morality  can  be  separated  from  religion.  Concede  as  much  as 
may  be  asked  to  the  effect  of  refined  education  in  minds  of 
peculiar  structure,  can  we  believe,  can  we  in  prudence  suppose, 
that  national  morality  can  be  maintained  in  exclusion  of  re- 
ligious principles?  Does  it  not  require  the  aid  of  a  generally 
received  and  divinely  authoritative  religion?"** 

"Works,  vol.  Vin,  p.  205. 


8.     THE  END  OF  THE  STATE 
By  Rev.  John  A,  Ryan,  D.D. 

In  the  foregoing-  chapters  we  have  presented  the  Catholic 
teaching  on  the  relations  that  should  subsist  between  the  State 
and  the  Church,  on  the  derivation  of  political  authority  by  the 
ruler,  or  rulers,  on  democracy  and  representative  government, 
and  on  the  moral  process  by  which  the  ruler  obtains  his  authority. 
We  have  also  traced  the  historical  development  of  the  doctrine 
which  underlines  this  process,  with  particular  reference  to  our 
own  political  history.  In  the  course  of  the  discussion  a  good 
deal  has  been  said  concerning  not  only  the  end  of  the  State, 
but  also  its  functions.  Nevertheless,  these  observations  have 
been  for  the  most  part  incidental  to  the  main  subjects  under 
consideration.  Neither  the  end  nor  the  functions  of  the  State 
have  been  dealt  with  adequately  and  systematically. 

As  we  have  already  seen,  the  State,  or  civil  society,  is  not  a 
voluntary  or  optional  association,  such  as,  a  trade  union  or  a 
social  club.  It  is  a  necessary  society,  a  society  which  men  are 
morally  bound  to  establish  and  to  maintain.  This  obligation 
arises  from  the  fact  that  without  a  political  organization  and 
government,  men  cannot  adequately  develop  their  faculties,  or 
live  right  and  reasonable  lives.  God  has  so  made  human  beings 
that  the  State  is  necessary  for  their  welfare.  "Man's  natural 
instinct,"  says  Pope  Leo  XIII,  "moves  him  to  live  in  civil  society, 
for  he  cannot,  if  dwelling  apart,  provide  himself  with  the  neces- 
sary requirements  of  life,  nor  procure  the  means  of  developing 
his  mental  and  moral  faculties."^ 

This,  then,  is  the  general  end  or  purpose  of  the  State,  the 
promotion    of    human    welfare.       "The    Almighty,    therefore, 

'  Encyclical,  The  Christian  Constitution  of  States,  page  2  of  thia 
volume. 

195 


196  STATE   AND   CHURCH 

has  appointed  the  charge  of  the  human  race  between  two 
powers,  the  ecclesiastical  and  the  civil,  the  one  being  set 
over  divine  and  the  other  over  human  things."^  Nor  is  the 
jurisdiction  of  the  State  over  "human  things"  exclusive  and 
complete.  There  is  another  association,  another  institution,  for 
the  promotion  of  temporal  welfare  which,  in  its  own  sphere, 
is  superior  to  the  State  in  authority,  and  prior  to  it  in  point 
of  time.  That  is  the  family.  In  the  primitive  age  of  most 
peoples,  the  family  provided  for  many  of  the  needs  and  per- 
formed many  of  the  functions  that  in  later  stages  of  develop- 
ment have  come  under  the  care  of  the  State.  Moreover,  men 
have  a  natural  right  to  form  a  great  variety  of  voluntary  as- 
sociations for  their  common  temporal  advantage,  as,  in  the  fields 
of  industry,  fraternal  insurance,  and  purely  ''social"  activities. 
Therefore,  the  end  of  the  State  is  to  promote  the  common  good 
only  to  the  extent  that  this  object  cannot  be  attained  by  the 
family  or  by  voluntary  associations. 

This,  in  a  sense  residuary,  province  always  exists,  and  is 
always  very  extensive  and  very  flexible.  Concerning  it  there 
still  exists  a  theory  which  is  older  than  the  Christian  era,  ap- 
pearing among  the  Orientals,  as  well  as  in  Greece  and  Rome. 
In  brief,  it  regarded  the  State  itself  as  the  end  of  all  individual 
effort.  Hence,  the  State  had  for  its  province  the  whole  field  of 
human  action,  religious,  moral,  domestic,  economic,  and  social. 
The  State  could  legitimately  intervene  and  interfere  in  every 
department  of  life ;  and  to  it  every  person  and  every  interest  was 
completely  subject  and  completely  subordinate.  According  to 
this  theory  the  province  of  the  State  comprised  not  merely  man's 
temporal  interests,  but  every  detail  of  his  existence;  and  the 
welfare  of  the  individual,  or  any  particular  group  of  individuals, 
was  conceived  to  have  no  value  except  in  so  far  as  it  served  the 
interests  and  aggrandizement  of  the  State.  "The  individual 
was  always  under  the  eye  of  the  State ;  his  conduct  was  regulated 
and  his  life  determined  for  him  with  such  minuteness  that  he 
was  regarded  as  existing  for  the  State  rather  than  the  State 
for  him."^     In  the  words  of  Lord  Acton,  the  ancients  "con- 

'  Idem,  pag^e  7  of  this  volume. 

*  Introduction  to  Political  Science,  p.  312,  by  James  W.  Garner. 


THE  END  OF  THE  STATE  197 

centrated  so  many  prerogatives  in  the  State  as  to  leave  no  foot- 
ing from  which  a  man  could  deny  its  jurisdiction  or  assign 
bounds  to  its  activity.  If  I  may  employ  an  expressive  anachro- 
nism, the  vice  of  the  classic  State  was  that  it  was  both  Church  and 
State  in  one.  Morality  was  indistinguished  from  religion,  and 
politics  from  morals ;  and  in  religion,  morality,  and  politics, 
there  was  only  one  legislator  and  one  authority.  The  State, 
while  it  did  deplorat)ly  little  for  education,  for  practical  science, 
for  the  indigent  and  helpless,  or  for  the  spiritual  needs  of  man, 
nevertheless  claimed  the  use  of  all  his  faculties  and  the  deter- 
mination of  all  his  duties.  Individuals  and  families,  associa- 
tions and  dependencies,  were  so  much  material  that  the  sovereign 
power  consumed  for  its  own  purposes.  What  the  slave  was  in 
the  hands  of  his  master,  tJie  citizen  was  in  the  hands  of  the  com- 
munity. The  most  sacred  obligations  vanished  before  the  public 
advantage.     The  passengers  existed  for  the  sake  of  the  ship."* 

In  this  ancient  theory,  the  reader  will  have  perceived  two 
distinct  elements,  apparently  independent  of  each  other.  Never- 
theless they  are  closely  related.  If  the  State  is  conceived  as  an 
end  in  itself,  to  which  individuals  and  citizens  are  mere  means, 
its  province  will  necessarily  be  regarded  as  comprising  the  whole 
field  of  the  individual's  relations  and  actions.  Since  every  one 
of  these  affects  thei  prosperity  of  the  State,  they  must  all  be  under 
the  absolute  control  of  the  State.  Therefore,  the  theory  of  the 
State  as  a  final  end  implies  the  theory  of  the  State  as  embracing 
every  end  which  the  individual  may  conceivably  seek.  And  there 
is  a  strong  tendency  for  the  rule  to  work  both  ways.  If  the 
end  of  the  State  be  coextensive  with  man's  whole  life  and  inter- 
est, if  it  may  regard  as  its  proper  and  exclusive  field,  not  merely 
the  maintenance  of  peace,  security,  order,  and  justice,  but  all 
the  details  of  man's  welfare  in  his  religious,  moral,  domestic, 
economic,  and  purely  ''social"  relationship,  the  State  will  sooner 
or  later  come  to  regard  its  own  prosperity  and  aggrandizement 
as  the  final  end  of  all  its  policies  and  actions.  The  narrow  sphere 
assigned  to  individual  initiative  and  individual  liberty,  and  the 
immense  concentration  of  power  in  the  hands  of  political  func- 
tionaries, will  be  mutually  helpful  forces  impelling  men  to  look 

*  History  of  Freedom  and  Other  Essays,  pp.  16,  17. 


198  STATE  AND   CHURCH 

upon  the  prosperity  of  the  State  as  superseding  and  absorbing 
the  welfare  of  human  beings. 

The  theory  of  State  omnipotence  and  omnicompetence  has 
been  revived  in  modern  times.  One  of  its  most  notable  later 
forms  is  that  expounded  by  the  German  philosopher,  F.  W. 
Hegel.^  In  his  view,  the  State  is  the  highest  expression,  mani- 
festation, evolution  of  the  Universal  Reason,  or  World  Spirit. 
Since  perfection  of  life  consists  in  the  continuous  expansion 
of  the  Universal  Reason,  and  since  the  Universal  Reason  obtains 
its  highest  development  in  the  State,  all  persons  and  institutions 
should  serve  and  magnify  the  State.  The  individual  exists  for 
the  State,  and  bears  the  same  relation  to  the  State  as  the  branch 
does  to  the  tree.  Hence  the  State  is  the  final  and  supreme  end 
of  human  action,  is  an  end  in  itself. 

The  number  of  political  writers  who  have  fully  adopted  the 
Hegelian  theory  of  the  State  is  negligible.  Its  philosophical 
basis  is  a  pantheistic  view  of  the  universe  which  has  not  found 
wide  acceptance.  Nevertheless  the  central  idea,  that  the  indi- 
vidual exists  for  the  State,  and  not  the  State  for  the  individual, 
has  been  approved  in  some  degree  by  a  large  number  of  political 
writers  and  by  not  a  few  political  rulers.  While  Professor 
James  W.  Gamer  declares  that  "modern  political  thought  and 
practice  reject  the  view  that  the  State  is  an  end  rather  than 
a  means,"®  the  Rev.  Theodore  Meyer,  S.J.,  asserts  that  this 
view  is  held  "not  merely  by  one  or  two  but  probably  by  a 
majority  of  the  teachers  of  public  law."''  According  to  Meyer, 
the  prevailing  form  of  the  theory  is  this:  The  end  of  the  State 
is  the  indefinite  furtherance  of  human  culture  or  civilization. 
While  this  end  may,  indeed,  be  identified  with  individual  wel- 
fare, it  is  formulated  by  the  advocates  of  the  theory  in  such 
general  and  abstract  terms  that  little  consideration  is  given  to 
the  individual 's  concrete  interests.  The  latter  are  always  remote, 
always  lost  in  some  future  condition  of  humanity  at  large. 
Existing  individuals  become  secondary  and  subordinate  to  the 

'^ Philosophie  des  EecMs ;  English  translation  by  S.  W.  Dyde,  Hegel's 
Philosophy  of  Right. 

"Introduction  to  Political  Science,  p.  312. 
'  Institutiones  Juris  Naturalis,  II,  276,  note. 


THE  END  OF  THE  STATE  199 

general  interests  of  the  future.  Since  the  evolution  of  humanity 
and  the  indefinite  progress  of  civilization  necessarily  tend  to 
be  identified  with  the  welfare  of  the  State,  the  latter  comes  to 
be  regarded  as  the  supreme  end. 

A  theory  of  State  purpose  which  can  easily  be,  and  sometimes 
has  been,  perverted  into  the  doctrine  that  the  State  is  an  end 
in  itself,  is  that  which  holds  that  its  primary  object  is  the 
development  of  national  power  ("der  nationale  Machtzweck"). 
If  national  power  be  confined  within  the  limits  fixed  by  natural 
law  and  human  welfare,  and  if  it  be  conceived  as  an  intermediate 
and  instrumental  end, — as  a  means  to  the  welfare  of  the  people 
— it  is  unobjectionable.  Occasionally,  however,  it  has  been  ac- 
cepted, especially  in  practice  by  political  rulers,  as  not  only 
the  primary  but  also  the  ultimate  end  of  State  activity.  Wher- 
ever this  acceptation  and  policy  prevail,  the  individual  is  unduly 
subordinate  to  the  State.  The  glorification  of  the  State  as  a 
detached  entity  is  sought  to  the  detriment  of  its  citizens. 

A  more  general  and  fundamental  influence  in  favor  of  the 
doctrine  that  the  State  is  an  end  in  itself,  is  produced  by  the 
almost  universal  rejection  of  the  doctrine  of  natural  rights. 
If  the  individual  has  no  rights  that  are  independent  of  the 
State,  then  the  State  is  the  supreme  determinant  of  rights. 
Theoretically,  indeed,  men  may  hold  that  the  end  of  the  State 
is  the  welfare  of  individuals,  and  that  in  the  promotion  of  this 
end,  the  State  may  disregard  the  natural  rights  of  particular 
individuals,  or  particular  groups  of  individuals.  This  course 
may  be  represented  as  promoting  the  welfare  of  the  great 
majority  of  individuals,  rather  than  the  interest  of  the  State 
as  an  abstraction.  Nevertheless,  the  disregard  of  natural  rights 
in  the  case  of  any  group  of  individuals  and  the  assumption  that 
the  State  is  the  source  of  all  individual  rights,  necessarily  tend 
to  diminish  the  importance  of  the  individual  as  such,  and  to 
exaggerate  the  importance  of  the  State.  Therefore,  this  view 
gives  strength  to  the  theory  that  at  any  given  time,  and  in 
relation  to  its  existing  subjects  or  citizens,  the  State  is  an  end 
in  itself. 

Another  source  of  the  doctrine  that  the  State  rather  than 
the  individual  is  the  supreme  end  of  human  action,  is  found  in 


200  STATE   AND   CHURCH 

the  modern  theory  of  sovereignty.  This  is  the  theory  associated 
with  the  name  of  the  English  jurist,  John  Austin/  It  main- 
tains that  political  sovereignty  is  legally  unlimited.  Two 
postulates  are  implied  in  this  theory :  First,  the  State  recognizes 
no  other  society  as  its  superior  or  as  its  equal ;  second,  the  State 
has  the  physical  power  to  coerce  all  individuals  and  societies 
into  obedience  to  its  mandates.  The  first  of  these  contradicts 
the  Catholic  doctrine  that,  in  its  own  sphere,  the  Church  is  an 
independent,  perfect  and  supreme  social  organization,  and  that, 
in  society  as  a  whole  it  is  co-ordinate  with,  not  subordinate  to, 
the  State.  This  is  a  question  of  moral  right,  of  the  requirements 
of  reason ;  it  is  not  a  question  of  physical  power.  Whether  the 
State  does  or  does  not  recognize  this  moral  right  and  rational 
authority  of  the  Church  in  the  field  of  the  spirit,  whether  the 
State  does  or  does  not  hinder  by  force  the  Church's  exercise  of 
this  right, — the  right  itself  exists  and  endures.  The  second 
postulate  of  the  Austinian  theory  involves  a  question  of  positive 
fact.  Is  the  State  always  sufficiently  strong  to  coerce  at  will 
the  actions  of  all  individuals  and  associations  within  its  ter- 
ritory? History  supplies  a  rather  large  list  of  examples  in  the 
negative.  However,  it  is  correct  to  say  that  the  State  usually 
has  sufficient  physical  power  to  overcome  any  opposing  force 
within  its  borders. 

The  conception  of  sovereignty,  the  supreme  politico-physical 
power  of  the  State,  as  legally  unlimited  easily  passes  into  the 
assumption  that  it  is  unlimited  morally.  If  sovereignty  were 
defined  as  the  supreme  legal,  political  and  physical  power  of 
the  State  to  do  everything  that  the  State  has  a  moral  right  to 
do,  this  assumption  could  never  be  drawn  from  the  definition. 
When  the  moral  qualification  is  omitted  from  the  definition  it 
readily  comes  to  be  ignored  in  thought  and  practice.  Legal 
omnipotence  insensibly  passes  into  complete  and  unqualified 
omnipotence.  Defenders  of  the  Austinian  doctrine  may  protest 
that  the  latter  conception  ''is  characteristic  only  of  some  ex- 
ponents of  the  doctrine,"  that  the  doctrine  "in  no  way  neces- 
sarily denies  that  the  State  ought  to  obey  the  moral  law,"  yet 
their  emphasis  upon  the  absolute  character  of  sovereignty,  and 
•  Lectures  on  Jurisprudence,  1832, 


THE  END  OF  THE  STATE  201 

their  failure  to  make  explicit  reference  to  its  moral  limitations, 
promotes  the  assumption,  conscious  or  unconscious,  that  no  such 
limitations  exist.^  After  all,  the  definition  of  sovereignty  merely 
in  terms  of  physical  and  legal  power  has  little  or  no  practical 
value,  imparts  little  or  no  practical  information;  for  the  idea 
of  the  State  necessarily  and  immediately  implies  this  measure 
of  power  over  its  territory  and  people.  What  is  required,  is  a 
statement  of  the  reasonable  power  possessed  by  the  State.  And 
the  average  man  naturally  assumes  that  any  formal  authoritative 
definition  is  intended  to  be  of  this  character,  is  designed  to  tell 
him  not  only  what  the  State  has  the  physical  power  to  do,  but 
what  it  may  do  in  harmony  with  the  moral  law  and  the  principles 
of  reason. 

The  influence  of  the  current  theory  of  sovereignty  in  promot- 
ing the  view  that  the  State  is  not  bound  by  the  moral  law,  is 
reinforced  by  two  particular  assumptions.  The  first  is  the  as- 
sumption which  denies  that  individuals  or  social  groups  "are 
possessed  of  any  natural  rights  which  in  effect  limit  the  power 
of  the  State.  "^°  If  the  State  may  properly  disregard  natural 
rights,  treat  them  as  non-existent,  it  may  logically  take  the  same 
attitude  toward  all  other  elements  of  the  moral  law.  Indeed, 
the  great  majority  of  conflicts  between  the  State  and  the  moral 
law  have  to  do  precisely  with  the  question  of  natural  rights. 
The  second  assumption  which  lends  support  to  the  doctrine  of 
State  independence  of  the  moral  law,  is  that  in  case  of  conflict 
the  State  itself  is  the  only  authority  competent  to  decide  whether 
or  not  its  proposed  action  constitutes  a  violation  of  morality. 
In  the  view  of  Burgess,  "the  State  is  the  best  interpreter  of  the 
laws  of  God  and  of  reason,  and  is  the  human  organ  least  likely 
to  do  wrong;  hence  one  must  hold  to  the  principle  that  the  State 
can  do  no  wrong.  "^^ 

»Cf.  "The  Pluralistic  State,"  in  the  "American  Political  Science 
Review,"  vol.  14,  p.  398,  sq, 

"  Ibid.,  p.  404. 

"  Political  Science  and  Constitutional  Law,  1,  pp.  54-57.  This  view 
receives  at  least  partial  approval  from  Ernest  Barker,  in  a  footnote  to 
H.  G.  Wells'  Outline  of  History,  II,  197:  "I  think  better  of  Machiavelli 
than  you  do,  and  especially  on  two  points.  (1)  He  raises  a  real  issue' — 
whether,  when  a  crisis  besets  the  State,  the  ruler  is  not  bound  to  abandon 
the  rules  of  private  morality,  if  by  so  doing  he  can  preserve  the  State.     If 


202  STATE  AND   CHURCH 

To  the  extent  that  men  regard  the  State  as  the  supreme 
moral  authority,  as  above  the  moral  law  which  governs  the  actions 
of  individuals  and  private  societies',  to  that  extent  they  must 
logically  regard  its  judgments,  its  actions  and  its  welfare  as  the 
supreme  consideration.  They  come  to  look  upon  the  State  as 
an  end  in  itself. 

At  first  sight,  it  would  seem  ridiculously  incorrect  to  enumer- 
ate among  those  who  hold  the  State  to  be  an  end  in  itself  the 
advocates  of  Soeialism.  For  they  profess  to  desire  above  all 
else  the  welfare  of  the  masses;  they  insist  that  the  Socialist 
State  and  administration  is  to  be  supremely  democratic;  and 
many  of  the  older  Socialists  went  so  far  as  to  predict  that 
upon  the  establishment  of  the  Socialist  organization  the  State 
would  die  out  as'  "a  government  of  persons"  and  become  sup- 
planted by  "an  administration  of  things."  Nevertheless,  their 
program  of  State  ownership  and  management  of  all  the  industries 
that  produce  for  a  national  or  an  international  market,  involves 
both  State  omnipotence  and  State  oninicompetence.  A  State 
that  controlled  both  the  political  and  the  industrial  life  of  the 
people,  would  completely  subordinate  the  individual  to  a  central- 
ized bureaucracy.  This  would  be  under  the  more  or  less  im- 
mediate direction  of  a  majority,  and  not  infrequently  of  a  power- 
fully organized  minority,  of  the  citizens.  Consequently,  the 
welfare  of  the  majority,  or  of  the  dominant  minority,  rather  than 
the  welfare  of  the  individual  as  such,  or  the  welfare  of  all  indi- 
viduals, would  come  to  be  regarded  as  the  supreme  consideration. 
It  would  also  eome  to  be  conceived  as  simply  the  welfare  of  the 
State.  From  this  stage  it  is  only  a  step  to  the  position  of  regard- 
ing the  State  as  an  end  in  itself.  At  least,  this  would  be  the 
tendency  if,  as  most  Socialists  expect  and  assume,  the  consti- 
tution of  the  commonwealth  contained  no  guarantees  of  indi- 

he  abandons  those  rules,  he  does  wro7ig  and  Machiavelli  admits  that — but, 
at  the  same  time,  as  the  agent  and  organ  of  the  State,  he  does  right  by 
preserving  it,  so  far,  at  any  rate  as  it  is  right  that  it  should  be  preserved. 
This  is  a  real  issue  which  one  cannot  simply  dismiss.  .  ."  The  same 
action  of  the  ruler  is  at  once  right  and  wrong!  Or,  if  its  wrongness  from 
the  viewpoint  of  private  morality  becomes  cancelled  by  the  fact  of  its  bene- 
fit to  the  State,  then  the  State  must  be  regarded  as  an  end  in  itself  and  the 
supreme  determinant  of  right  and  wrong  I 


THE  END  OF  THE  STATE  203 

vidual  rights  against  the  autocratic  and  oppressive  action  of 
the  State. 

In  brief,  the  acceptance  of  the  theory  of  the  State  as  a  final 
end  would  be  a  practical  consequence  rather  than  a  formal 
postulate,  an  implicit  rather  than  an  explicit  element,  in  the 
Socialist  system.  Given  the  invincible  combination  of  political 
and  industrial  power,  given  the  absence  of  a  bill  of  rights  for 
the  individual,  the  inevitable  result  would  be  the  absorption  of 
the  individual  into  the  State  and  the  conscious  or  unconscious 
general  acquiescence  in  the  theory  that  the  welfare  of  the  State 
is  the  supreme  end  of  the  social  and  political  endeavors  and 
policies.  Indeed,  the  great  majority  of  persons  who  to-day 
exaggerate  the  dignity  and  the  rights  of  the  State  are  led  to 
this  position,  not  by  a  metaphysical  theory  of  its  nature  and 
end,  but  through  a  denial  or  a  disregard  of  the  natural  rights 
of  the  individual. 

Whatsoever  may  be  its  sources,  and  however  widely  it  may 
be  held,  the  theory  of  State  omnipotence  and  omnicompetence, 
is  fundamentally  false.  The  State  is  not,  as  Hegel  thought, 
the  highest  expression  of  the  World-Spirit ;  it  is  merely  an  organi- 
zation of  human  beings.  The  main  purpose  of  the  State  is  not 
to  promote  the  general  evolution  of  humanity,  culture  or  civili- 
zation :  This  aim  is  secondary  and  surbordinate.  While  the  State 
is  under  reasonable  obligation  to  give  some  attention  to  the 
generations  yet  unborn,  the  welfare  of  the  men  and  women  now 
living  is  paramount.  Individuals  are  not  mere  means  or  instru- 
ments to  the  glorification  of  the  State,  but  are  persons  having 
intrinsic  worth  and  sacredness.  They  are  endowed  with  rights 
which  may  not  be  violated  for  the  sake  of  the  State.  Considered 
apart  from  the  individuals  composing  it,  the  State  is  a  mere 
abstraction.  Considered  as  a  majoritj^  or  as  a  select  minority 
of  its  component  individuals,  the  State  has  no  right,  nor  any 
reason,  to  disregard  the  claims  of  any  section  of  its  members, 
since  all  are  of  equal  worth  and  importance.  National  power 
is  a  means  to  State  efficiency,  not  the  end  for  which  the  State 
exists.  As  regards  the  sovereignty  of  the  State,  it  is  strictly 
limited  by  the  moral  law,  and  its  true  end  is  in  harmony  with 
the  moral  law.    Finally,  any  organization  of  the  State  which 


204  STATE   AND   CHURCH 

involves  the  practical  disregard  of  individual  rights  and  indi- 
vidual freedom,  is  quite  as  unreasonable  as  a  system  which 
formally  assumes  the  State  to  be  an  end  in  itself. 

To  all  these  theories  which  either  frankly  make  the  State  an 
end  in  itself,  or  tend  to  do  so  by  exaggerating  its  authority  and 
scope,  we  oppose  the  Catholic  doctrine  as  expressed  by  Pope 
Leo  XIII,  toward  the  close  of  his  encyclical  ''On  the  Condition 
of  Labor" :  ''Civil  society  exists  for  the  common  good,  and  hence 
is  concerned  with  the  interests  of  all  in  general,  albeit  with  indi- 
vidual interests  in  their  due  place  and  degree."  In  this  state- 
ment are  two  significant  declarations:  First,  that  the  end  of  the 
State  is  not  itself,  either  as  an  abstraction,  or  as  a  metaphysical 
entity,  or  as  a  political  organization,  but  the  welfare  of  the 
people;  second,  that  the  welfare  of  the  people,  "the  common 
good,"  is  not  to  be  conceived  in  such  a  collective,  or  general,  or 
organic  way  as  to  ignore  the  welfare  of  concrete  human  beings, 
individually  considered.  A  brief  analysis  of  the  phrase,  "com- 
mon good,"  as  interpreted  by  Catholic  authorities,  will  enable 
us  to  see  specifically  and  precisely  what  is  the  true  end  of  the 
State. 

Taking,  then,  the  two  words,  "common  good,"  as  the  most 
concise  expression  of  the  purpose  for  which  the  State  exists 
and  functions,  let  us  ask  ourselves,  first,  what  are  the  beneficial 
objects  denoted  by  the  term  "good"?  They  are  all  the  great 
classes  of  temporal  goods ;  that  is,  all  the  things  that  man  needs 
for  existence  and  development  in  this  life.  They  comprise  all 
these  orders  of  goods,  spiritual,  intellectual,  moral,  physical  and 
economic.  More  briefly,  thej^  are  all  the  external  goods  of  soul 
and  body.  Hence  it  is  the  right  and  duty  of  the  State  to  pro- 
tect and  further  the  religious  interests  of  the  citizens,  as  we 
have  already  seen  in  the  first  two  chapters  of  this  volume;  to 
promote  within  due  limits  their  education  ;  to  protect  their  morals 
against  external  dangers,  and  to  facilitate  moral  education;  to 
safeguard  the  liberty  and  the  bodily  intergrity  of  the  citizens 
from  undue  restraint,  malicious  attack,  and  preventable  acci- 
dent; and  to  protect  private  property  and  provide  the  citizens 
with  a  reasonable  opportunity  of  obtaining  a  livelihood  and 
advancing  their  material  welfare. 


THE  END  OF  THE  STATE  205 

That  all  these  objects  are  conducive  to  human  welfare,  is 
self-evident ;  that  none  of  them  can  be  adequately  attained  with- 
out the  assistance  of  the  State,  is  fully  demonstrated  by  experi- 
ence; that  they  all  come  within  the  proper  scope  and  end  of 
the  State  is  the  obviousi  conclusion. 

Now  these  objects,  spiritual,  intellectual,  moral,  physical,  and 
economic,  are  the  end  of  the  State,  not  under  every  aspect  but 
only  in  so  far  as  they  are  or  can  be  made  "common."  While 
the  State  exists  for  the  individual,  rather  than  the  individual 
for  the  State,  it  is  not  the  business!  of  the  State  to  take  cognizance 
of  every  individual,  as  such,  and  to  provide  him  directly  with 
all  these  goods,  after  the  manner  of  the  provision  made  by  a  good 
father  for  his  helpless  children.  Were  the  State  to  attempt  this 
it  would  injure  instead  of  promoting  the  welfare  of  the  vast 
majority  of  individuals.  This  is  the  verdict  of  experience.  All 
that  the  State  can  do,  therefore,  is  to  make  these  goods  available. 
It  can  bring  them  within  reach  of  the  individual  only  through 
general  acts  which  aim  to  produce  a  common  effect.  It  can  pro- 
vide common  oppm'iunities ;  the  individual  must  take  advantage 
of  the  opportunities  and  make  them  fruitful  for  his  peculiar 
needs.  Asi  a  rule,  therefore,  the  State  promotes  the  common 
good  by  general  laws  and  institutions,  not  by  particular  benefits. 

On  the  other  hand,  the  common,  or  general,  or  public  good 
must  not  receive  a  rigid  or  an  exclusive  interpretation.  The 
end  of  the  State  must,  indeed,  be  conceived  as  common  and 
universal,  in  the  sense  that  no  class  nor  any  individual  is  to 
be  positively  excluded;  but  not  every  act  of  the  State  need 
affect  all  citizens  in  the  same  way,  nor  be  directly  beneficial 
to  the  whole  community.  As  a  matter  of  fact,  few  if  any  laws 
or  other  civil  acts  have  precisely  the  same  effect  upon  all  individ- 
uals. Conspicuous  examples  of  this  fact  are  tariff  laws,  tax 
laws,  industrial  legislation  of  all  sorts,  and,  indeed,  substantially 
all  the  enactments  of  any  legislative  body.  Even  such  elementary 
public  institutions  as  the  police  force,  the  fire  department  and 
the  public  school  affect  different  classes  of  citizens  differently 
and  unequally.  In  the  second  place,  acts  of  the  State  need  not 
always  benefit  the  community  as  a  whole.  While  the  State  is 
obliged  to  pursue  the  common  good  of  all,  it  is  not  required  to 


206  STATE   AND   CHURCH 

make  every  one  of  its  acts  serve  that  end  immediately  and 
directly.  While  it  must  confer  general  rather  than  particular 
benefits,  it  often  fulfills  this  obligation  through  enactments  whose 
immediate  effect  is  to  promote  the  welfare  of  only  a  single  class. 
Indeed,  it  is  required  to  do  this  very  thing  if  it  is  to  attain  its 
final  end.  For  its  final  end  is  the  welfare  of  all  its  individual 
members.  Since  its  competent  individuals  are  grouped  in  differ- 
ent classes,  economic  and  other,  they  necessarily  have  different 
interests.  Unless  these  varying  interests  are  recognized  and  ade- 
quately cared  for  by  appropriate  State  action,  some  of  the  classes 
of  the  community  will  not  be  justly  treated  by  the  State.  In 
respect  to  these,  the  State  will  have  failed  to  promote  the  good 
of  all. 

The  specious  objection  to  class  legislation  is  based  entirely 
upon  apriori  assumptions.  It  derives  no  support  from  the  facts 
of  contemporary  society.  Its  roots  are  to  be  found  in  the 
individualistic  theories  that  pervaded  political  thought  when  the 
government  of  the  United  States  was  established.  The  political 
thinkers  of  that  day  assnimed  that  all  men  were  so  nearly  equal 
in  capacities  and  opportunities  that  all  would  benefit  equally 
by  the  few  laws  that  were  required  to  promote  the  common  wel- 
fare. While  even  then  the  population  of  the  country  was  divided 
into  at  least  two  important  economic  classes,  the  agrarian  and 
the  commercial,  and  while  these  interests  clashed  more  than  once 
in  the  legislation  of  the  time  and  even  in  the  making  of  the 
Constitution,  the  diversity  of  class  interests  was  neither  so  per- 
vasive nor  so  sharp  as  it  has  since  become;  and  the  leaders  of 
political  thought  believed  that  class  differences  and  disadvantages 
would  tend  to  diminish  rather  than  increase.  Thus  began  a 
misleading  tradition  which  has  in  all  the  succeeding  years  stood 
in  the  way  of  the  correct  doctrine  concerning  the  end  of  the 
State,  and  prevented  the  enactment  of  necessary  and  humane 
social  legislation. 

If  the  State  is  to  promote  the  common  good  in  an  equitable 
and  adequate  degree,  it  must  consider  both  the  good  of  the  whole 
and  the  good  of  the  various  classes.  The  common  interests  of 
all  the  citizens  can  be  cared  for  through  uniform  and  general 
legislation ;  for  example,  laws  for  the  protection  of  religion  and 


THE  END  OF  THE  STATE  207 

morals.  The  varying  interests  of  the  different  classes  must  be 
provided  for  by  enactments  which  differ  according  to  the  dif- 
ferent needs  and  deserts ;  for  example,  laws  concerning  industrial 
combinations,  co-operative  associations  and  labor  organizations. 
To  avoid  all  class'  legis-lation  will  mean  discrimination  in  favor 
of  certain  classes,  namelj^,  those  that  are  exceptionally  powerful. 
These  will  be  left  free  to  exploit  the  weaker  classes.  Hence, 
in  the  sentence  quoted  above  from  Pope  Leo  XIII,  the  State 
is  said  to  be  concerned  "with  the  individual  interests  in  their 
due  place  and  degree."  Earlier  in  the  encyclical  the  great 
Pontiff  expresses  the  correct  principle  with  more  amplitude  and 
precision.  "Whenever  the  general  interest,  or  any  particular 
class,  suffers  or  is  threatened  with  injury  which  can  in  no  other 
way  be  met  or  prevented,  it  is  necessary  for  the  State  to  inter- 
vene." The  principle  laid  down  in  the  italicized  section  of  this 
sentence  is  still  more  specifically  and  emphatically  stated  in  other 
passages  of  the  same  encyclical.  For  example:  "The  richer 
class  have  many  ways  of  shielding  themselves,  and  stand  less  in 
need  of  help  from  the  State ;  whereas  those  who  are  badly  off 
have  no  resources  of  their  own  to  fall  back  upon,  and  must  chiefly 
depend  upon  the  assistance  of  the  State.  "^" 

The  common  good  means  not  only  the  good  of  all  in  general, 
or  as  a  whole,  but  the  good  of  every  class  and,  so  far  as  practi- 
cable, the  good  of  every  individual.  To  put  the  matter  in 
summary  terms,  the  State  is  under  obligation  to  promote  the 
welfare  of  its  citizens,  as  a  whole,  as  members  of  families,  and 
as  members  of  social  classes.^^ 

How  far  the  State  should  go  in  the  pursuit  of  these  objects; 
whether  it  should  directly  provide  the  various  kinds  of  goods 
required  by  the  various  classes,  or  merely  create  and  guarantee 
the  opportunity  of  acquiring  them ;  by  what  principles  and  rules 
the  State  should  be  prevented  from  encroaching  upon  the  proper 
sphere  of  the  individual,  the  Church  and  private  associations, — 
are  questions  which  concern  the  State's  functions.  They  will 
be  discussed  in  the  next  chapter. 

"  The  whole  section  of  the  encyclical  on  the  part  of  the  State  in  the 
reform  of  industrial  conditions  is  fundamental. 

"  Cf.  Costa-Rosetti,  Synopsis  Philosophiae  Moralis,  pp.  479-495. 


9.     ERRONEOUS    THEORIES    CONCERNING    THE 
FUNCTIONS  OF  THE  STATE 

By  Rev.  John  A.  Ryan,  D.D. 

The  ultimate  end  of  the  State  in  the  temporal  order  is  the 
public  good,  or  public  welfare.  The  proximate  end  comprises 
all  those  lawful  means  that  contribute  to  the  attainment  of  the 
ultimate  end.  They  consii?t  of  political  actions  and  institutions, 
proceeding  from  the  three  great  departments  of  government; 
namely,  the  legislative,  executive,  and  judiciary.  It  is  these 
means  that  we  have  in  mind  when  we  speak  of  the  functions  of 
the  State. 

Concerning  these  functions  political  writers  have  advocated 
three  different  theories.  Of  these  the  first  two  are  extreme  and 
mutually  opposed;  the  third  occupies  a  middle  ground.  Not 
without  some  inaccuracy,  the  first  two  are  commonly  known, 
respectively,  as  individualistic  and  socialistic.  The  third  theory 
has  no  fixed  designation,  although  it  is  sometimes  called  the 
'  *  general  welfare  theory, ' ' 

THE  INDIVIDUALISTIC  THEORY 

Inasmuch  as  the  State  operates  through  the  political  organiza- 
tion called  the  government,  discussion  of  the  State's  functions 
is  necessarily  discussion  of  the  functions  of  government.  Hence 
the  task  before  us  is  to  describe,  in  outline,  the  kinds  of  activities 
which  the  government  may  properly  perform  in  order  to  attain 
the  end  of  the  State;  that  is,  "to  promote  the  welfare  of  the 
people  as  a  whole,  as  members  of  families,  and  as  members  of 
social  classes."  This  task  can  be  most  satisfactorily  under- 
taken by  considering  successively  the  three  theories  noted  above. 

The  individualistic  theory  may  be  defined  in  general  terms 

208 


ERRONEOUS  THEORIES  209 

as  that  which  would  reduce  government  functions  to  a  mini- 
mum. It  frequently  finds  expression  in  the  assertion,  "the  best 
government  is  that  which  governs  least."  It  conceives  govern- 
ment entirely,  or  almost  entirely,  in  terms  of  restraint.  Govern- 
mental acts  are  thought  of  as  restrictions  upon  individual 
liberty.  Government  and  its  operations  come  to  be  regarded  as 
little  better  than  necessary  evils.  Between  this  theory  and 
anarchism  the  difference  is  one  of  degree  rather  than  of  kind. 
While  the  various  defenders  of  the  theory  differ  somewhat  in 
their  conceptions  of  the  proper  limitations  of  governmental 
action,  the  great  majority  hold  that  it  should  merely  preserve 
order,  enforce  contracts,  and  punish  crime.  Hence  their  doc- 
trine has  been  called  in  derision  "the  policeman  theory  of  the 
State."  A  more  general  name  is  the  laissez-faire  theory,  which 
denotes  in  particular  its  attitude  toward  government  supervision 
of  industry. 

The  roots  of  the  individualistic  theory  are  partly  political  and 
economic,  partly  philosophical,  and  partly  industrial.  Polit- 
ically it  was  a  reaction  against  the  excessive  and  harmful  restric- 
tions of  individual  liberty  by  the  governments  of  Europe.  The 
civil  freedom  of  the  masses  was  throttled  in  the  interest  of  the 
privileged  classes.  Commerce  and  industry  were  hampered  by 
a  multitude  of  restrictions  that  had  long  outlived  whatever  use- 
fulness they  once  possessed.  The  latter  half  of  the  eighteenth 
century  witnessed  a  formidable  reaction  against  these  restrictions. 
In  France  it  found  expression  in  the  writings  of  the  Physiocrats 
and  in  the  principles  of  the  Revolution ;  in  Great  Britain  it  was 
championed  by  Adam  Smith  and  other  economists  with  such 
extraordinary  success  that  it  was  translated  unmodified  into 
acts  of  Parliament.'  "All  systemis  either  of  preference  or  re- 
straint being  thus  completely  taken  away,"  said  Smith,  "the 
simple  and  obvious  system  of  natural  liberty  establishes  itself 
of  its  own  accord.  "2  In  the  United  States  of  America,  the 
political  philosophy  of  the  day,  the  revolt  against  the  petty 
restrictions  imposed  by  the  British  government,  and  the  natural 

'Cf.  Ingram,  History  of  Political  Economy,  pp.  89-93;   Toynbee,  Indus- 
trial Revolution,  11-26;  Hammond,  The  Town  Laborer,  ch3.  VII  and  X. 
*  The  Wealth  of  Nations,  Book  IV,  ch.  IX, 


210  STATE   AND   CHURCH 

individualisin  of  a  pioneer  people  inhabiting  a  land  of  excep- 
tional opportunities, — combined  to  make  our  government  from 
the  beginning  a  more  thorough  exponent  of  the  individualistic 
theory  than  those  of  England  and  France. 

In  the  realm  of  philosophy,  the  two  most  influential  promoters 
of  the  theory  are  pro'bably  Immanuel  Kant  and  Herbert 
Spencer.  The  Kantian  principle  of  individual  rights  and  liberty 
is  this:  "Act  externally  in  such  a  manner  that  the  free  exer- 
cise of  thy  will  may  be  able  to  coexist  with  the  freedom  of  all 
others,  according  to  a  universal  law."^  According  to  the  ad- 
vocates of  this  principle,  the  proper  and  only  function  of  the 
State  is  to  protect  men  in  the  enjoyment  of  their  equal  spheres 
of  liberty,  specifically,  to  safeguard  men's  rights  of  person  and 
property  against  violence  and  fraud.  As  we  shall  see  presently, 
the  principle  does  not  logically  warrant  even  this  measure  of 
State  activity. 

The  principle  of  individual  rights  and  liberty  laid  down  by 
Kant  is  substantially  the  same  as  that  formulated  by  Herbert 
Spencer:  "Every  man  has  freedom  to  do  all  that  he  wills, 
provided  he  infringes  not  the  equal  freedom  of  any  other  man."* 
However,  Spencer  arrived  at  this  formula  without  being  aware 
of  the  similar  maxim  which  Kant  had  enun,ciated  many  years 
before.^  The  inference  regarding  State  functions  which  Spencer 
draws  from  his  principle  of  individual  rights  and  liberty  is  sub- 
stantially the  same  as  that  deduced  by  Kant.  "The  greatest 
prosperity  and  multiplication  of  efficient  individuals  will  occur 
where  each  is  so  constituted  that  he  can  fulfill  the  requirements 
of  his  own  nature  without  interfering  with  the  fulfilment  of 
such  requirements  by  others."®  Hence  the  sole  duty  of  the 
State  is  "to  insist  that  these  conditions  shall  be  conformed  to"; 
in  brief,  the  State  should  not  go  beyond  the  task  of  "maintaining 
justice."  By  induction  as  well  as  by  deduction,  Spencer  ar- 
rives at  the  conclusion  that  "the  primary  function  of  govern- 
ment is  that  of  combining  the  actions  of  the  incorporated  indi- 

*  Einleitung  in  die  EecJitsIehre,  pp.  31,  68;  Cf.  Meyer,  Institutiones  Juris 
Naturalvt,  I,  525;  II,  305. 

*  Principles  of  Ethics,  II,  46. 
'  Idem,  appendix  A. 
'Idem,  p.  221. 


ERRONEOUS  THEORIES  211 

viduals  for  war,  while  its  secondary  function  is  that  of  defending 
its  component  members  against  one  another."'^ 

Both  Kant  and  Spencer  conceived  the  functions  of  the  State 
in  terms  of  coercion.  Government  has  no  other  duty  than  that 
of  protecting  rights  and  repressing  injustice.  It  should  not 
go  outside  this  province  to  promote  the  welfare  of  individuals 
or  classes  by  positive  measures  of  State  assistance,  whether  in 
the  field  of  religion,  morals,  education  or  industry.  While 
very  few  political  writers  and  no  governments  any  longer  con- 
sciously subscribe  to  the  theories  of  these  two  writers,  a  large 
section  of  the  people,  educated  and  uneducated,  is  still  consid- 
erably influenced  by  them  on  account  of  the  place  which  they 
have  obtained  in  political,  philosophical,  and  general  literature. 
Kant,  especially,  gave  a  strong  impetus  to  the  political  and 
economic  liberalism  which  was  formerly  very  powerful,  and 
which  is  still  dear  to  the  hearts  of  the  bourgeois. 

The  industrial  contribution  to  the  individualistic  theory  is  to 
be  found  in  the  interests  and  influence  of  the  capitalist  classes. 
Reference  has  been  made  above  to  the  part  played  by  the  econo- 
mists in  popularizing  the  doctrine  and  promoting  its  enactment 
into  law  in  the  first  quarter  of  the  nineteenth  century.  More 
powerful  even  than  the  economists  was  the  new  capitalist  class 
which  arose  during  the  Industrial  Revolution.  So  influential 
were  the  capitalists  in  shaping  legislative  policies  at  this  period 
that  the  Combination  Acts,  passed  at  their  dictation,  "remain 
the  most  unqualified  surrender  of  the  State  to  the  discretion 
of  a  class  in  the  history  of  England."^  ''Let  alone"  by  the 
government,  the  capitalists  were  enabled,  through  "free"  con- 
tracts with  the  laboring  population,  to  employ  children  under 
the  age  of  ten  in  factories,  to  require  women  and  children,  as 
well  as  men,  to  toil  for  12,  14,  and  even  16  hours  per  day,  to 
injure  the  bodies  and  the  health  of  the  employees  through  unsafe 
and  unsanitary  work  places,  to  pay  starvation  wages,  and  in 
general  to  exploit  the  workers  to  the  utmost  limit  of  human 
endurance.  Since  they  were  greatly  and  notoriously  superior 
to  the  workers  in  bargaining  power,  they  were  obviously  in- 

'  Idem,  p.  207. 

'  Hammond,  op.  cit.,  p.  113. 


212  STATE   AND   CHURCH 

terested  in  having  the  labor  contract  unregulated  by  legal 
statutes.  This  attitude  has  been  taken  by  the  employing  classes 
of  every  industrial  nation.  As  regards  government  regulation 
of  industry  in  the  interest  either  of  the  laborer  or  the  consumer, 
they  have  been  in  great  majority  champions  of  the  individual- 
istic theory. 

So  much  space  has  been  given  to  the  origins  of  the  individual- 
istic theory  because  the  interest  in  it  is  now  mainly  historical. 
In  the  form  advocated  by  Kant  and  Spencer,  it  has  never  been 
adopted  by  a  modern  State.  Not  even  in  the  first  quarter  of 
nineteenth  century  England,  nor  in  the  first  half  of  nineteenth 
century  America,  did  the  State  confine  its  activities  to  the 
protection  of  life  and  property  and  the  enforcement  of  contracts. 
There  was  always  some  regulation  of  industrial  affairs'  in  the 
interest  of  some  class,  some  government  operation  of  public 
utilities,  e.  g.,  the  post  office,  some  public  provision  for  education, 
and  some  State  protection  of  public  health  and  morals.  With 
the  exception  of  aibout  half  a  century  of  reaction  brought  about 
by  the  political,  economic,  philosophical,  and  industrial  factors 
above  described,  the  policy  of  all  nations  has  been  out  of  harmony 
with  the  individualistic  theory,  and  if  the  signs  of  our  own 
time  can  be  trusted  this  theory  will  command  less  respect 
twenty  years  from  now  than  it  commands  to-day. 

From  the  side  of  reason  and  experience  the  arguments  against 
the  individualistic  theory  are  overwhelming.  They  are  drawn 
in  part  from  the  nature  of  man,  and  in  part  from  the  defects 
of  the  individualistic  assumptions. 

The  most  extreme  of  these  assumptions  is  that  government  is 
merely  a  necessary  evil.  Government  is  conceived  entirely,  or 
almost  entirely,  as  a  check  upon  individual  liberty,  and  therefore 
as  regrettable  if  not  abnormal.  Now  the  truth  is  that  the  State 
and  government  are  as  natural  as  human  association.  Men 
cannot  live  in  isolation;  in  society  they  cannot  live  reasonable 
lives  nor  pursue  self-development  without  the  State.  This  is 
a  fundamental,  normal  fact  of  human  nature,  as  evinced  by 
universal  experience.  It  is  a  fact  that  the  Catholic  Church  has 
always  recognized  and  proclaimed.  She  teaches  that  the  State 
is  a  necessary,  not  a  voluntary,  society,  and  that  it  is  as  natural 


ERRONEOUS  THEORIES  213 

to  man  as  the  family  or  as  organized  religion.  The  exponents 
of  the  individualistic  theory  proceed  from  a  false  viewpoint 
and  a  false  assumption  concerning  the  nature  and  needs  of  man 
in  relation  to  the  State.  Were  they  to  estimate  the  facts  of  life 
without  these  prejudices,  they  would  realize  that  the  State  is  a 
necessary  means  to  right  living  and  human  progress. 

Their  conception  of  governmental  activity  as  almost  entirely 
restrictive  and  coercive  is  false  and  misleading.  In  the  first 
place,  modem  governments  perform  very  many  functions  which 
are  not  restrictive,  even  in  form.  Such  are  the  maintenance  of 
schools,  a  health  service,  a  life  saving  service,  fire  departments, 
roads,  parks,  etc.,  and  the  operation  of  a  great  number  of  scien- 
tific bureaus  and  other  centers  of  information  and  advice.  None 
of  these  is  a  direct  restraint  upon  the  freedom  of  the  individual. 
Some  of  them  indirectly  diminish  the  economic  and  professional 
opportunities  of  some  persons,  inasmuch  as  they  occupy,  in 
whole  or  in  part,  field's  that  would  otherwise  be  occupied  ex- 
clusively by  individual  citizens.  To  be  sure,  the  individualist 
may  assert  that  these  are  not  legitimate  functions  of  the  State, 
but  that  contention  is  based  upon  an  apriori  theory  rather  than 
upon  any  direct  interference  with  individual  liberty.  The 
apriori  theory  will  be  considered  presently. 

In  the  second  place,  a  great  deal  of  restrictive  or  prohibitive 
legislation  is  negative  only  in  form.  In  effect  it  is  positive, 
inasmuch  as  it  increases  the  actual  liberty  and  opportunity  of 
all  those  persons  who  could  not  or  would  not  exercise  the  liberty 
which  the  law  for'bids,  and  who  would  be  injured  through  the 
exercise  of  such  liberty  by  others.  For  instance,  child  labor 
legislation  increases  the  opportunities  and  welfare  of  children; 
anti-monopoly  laws  are  calculated  to  increase  the  opportunity 
and  welfare  of  the  majority  of  the  population.  When  men 
denounce  industrial  regulations  of  this  sort  as  restraints  upon 
individual  freedom,  what  they  really  demand  is  that  one  class 
of  persons  should  be  left  free  to  oppress  another,  usually  a 
larger,  class  of  persons.  In  all  such  situations  the  real  conflict 
of  desires  and  interests  is  not  between  the  government  and  the 
whole  body  of  citizens,  but  between  two  classes  of  citizens. 
Hence  the  reasonalbleness  of  government  interference  with  in- 


214  STATE   AND   CHURCH 

dividual  liberty  cannot  be  determined  by  the  ttare,  technical 
fact  of  restraint.  It  is  to  be  sought  in  the  effects  which  the  law 
produces  upon  the  rights  and  welfare  of  the  various  classes 
that  make  up  the  community. 

In  the  third  place,  restrictive  and  prohibitive  legislation  rarely 
diminishes  the  actual  liberty  of  more  than  a  minority,  generally 
a  small  minority,  of  the  community.  The  law  forbidding  theft 
applies  in  form  to  all  the  citizens,  but  it  actually  affects  only 
a  small  minority;  for  the  great  majority  have  no  desire  to  steal. 
The  liquor  prohibition  law  curtails  the  desired  liberty  of  as 
large  a  proportion  of  the  population  as  any  other  restrictive 
statute,  since  a  very  numerous  section  of  the  community  wants 
to  consume  intoxicating  drink;  nevertheless,  a  very  large  num- 
ber, if  not  the  majority,  attaches  no  importance  to  this  freedom. 
The  latter  are  not  practically  affected  t)y  the  prohibition  law. 
Their  liberty  is  only  hypothetically,  not  actually,  diminished. 
The  law  forbids  them  to  do  something  which  is  outside  of  their 
desires.  The  repeal  of  the  law  would  give  them  a  kind  of 
liberty  that  they  do  not  regard  as  of  any  value.  "When  we 
turn  to  the  industrial  field,  we  find  a  very  striking  difference 
between  the  hypothetical  and  the  actual  diminution  of  liberty. 
Laws  which  prohibit  the  exploitation  of  child  labor  by  employ- 
ers, and  the  imposition  of  extortionate  prices  upon  consumers 
by  a  monopoly,  restrict  the  potential  or  theoretical  liberty  of  all 
persons,  since  they  carry  no  exemption  for  any  class.  Never- 
theless, the  persons  whose  freedom  is  actually  lessened,  constitute 
a  very  small  section  of  the  population.  The  overwhelming 
majority  could  not  or  would  not  do  the  things  which  the  law 
forbids.    In  their  case  the  law  is  no  restraint  upon  actual  liberty. 

In  the  fourth  place,  the  curtailment  of  liberty  is  not  neces- 
sarily nor  always  an  evil  thing.  It  is  not  even  a  lesser  evil. 
Not  infrequently  it  is  a  positive  good.  Individual  liberty  is  a 
means,  not  an  end.  When  it  is  directed  to  evil  purposes,  to 
objects  inconsistent  with  the  true  welfare  of  its  possessor,  it  is 
a  bad  thing  for  him.  When  it  inflicts  injury  upon  the  neighbor, 
it  is  likewise  irrational.  And  these  perversions  of  liberty  are 
sufficiently  frequent  to  require  constant  restraint  by  an  adequate 
social  agency.    Such  an  agency  is  the  government.    While  nega- 


ERRONEOUS  THEORIES  215 

tive  in  form, — ''thou  shalt  not" — its  regulations  are  ultimately 
positive  and  constructive.  It  assures  to  men  a  larger  measure 
of  opportunity  for  right  life  than  would  be  possible  in  its  absence. 
The  limitation  of  liberty  is  quite  as  normal  as  the  exercise  of 
liberty.  Hence  due  limitations  imposed  by  the  State  are  in  no 
sense  an  evil,  nor  even  abnormal.  It  must  be  acknowledged 
that  the  restrictions  of  individual  liberty  by  many  European 
governments  in  the  seventeenth  and  eighteenth  centuries  were 
tyrannical  and  destructive  of  human  welfare;  but  this  fact  does 
not  warrant  the  inference  that  restriction  itself  is  only  a  species 
of  necessary  evil. 

So  much  for  the  assumptious  and  prejudices  underlying  the 
individualistic  theory.  Let  us  now  consider  its  supreme  political 
formula;  namely,  that  government  should  merely  prevent  and 
punish  violence  and  fraud  and  enforce  contracts,  or  that  its 
sole  function  is  the  protection  of  rights.  In  passing,  it  may  be 
noted  that  the  exponents  of  the  theory  are  not  willing  to  have 
their  formula  applied  in  its  full  extension.  For  example,  the 
claim  of  the  laborer  to  a  living  wage  is  in  the  present  industrial 
system  one  of  man 's  natural  rights.  Yet  the  individualist  would 
deny  that  the  enforcement  of  this  right  by  means  of  minimum 
wage  law  is  a  proper  function  of  government.  In  any  case, 
the  formula  itself  has  no  basis  in  reason  or  in  experience. 
If  the  end  of  the  State  is  to  promote  the  common  good,  why 
should  its  benefits  be  restricted  to  one  class  of  goods?  Men 
need  protection  against  injustice,  indeed,  but  they  have  also 
a  great  variety  of  other  needs.  Religion,  morals,  education,  and 
health,  are  at  least  as  vital  to  human  welfare  as  physical  in- 
tegrity and  private  property.  And  the  inability  of  the  individ- 
ual to  safeguard  his  welfare  in  respect  to  the  former  goods  is 
frequently  as  obvious  as  in  the  case  of  his  corporal  and  property 
rights.  Nevertheless,  the  individualist  would  not  permit  the 
government  to  make  adequate  provision  for  man's  welfare  as 
regards  religion,  morality,  education  or  health.  Such  legislation 
he  would  condemn  as  outside  the  legitimate  province  of  the 
State.     Surely  this  position  is  artificial  and  illogical. 

The  individualistic  principle  of  equal  freedom  is  likewise 
artificial.    Moreover,  it  is  impossible.    It  holds  that  the  Individ- 


216  STATE   AND   CHURCH 

ual  should  be  free  to  do  anything  that  he  wishes,  provided  that 
he  does  not  interfere  with  the  equal  freedom  of  others.  But  this 
principle  is  gratuitous  and  palpably  false.  Translated  into 
governmental  policy,  it  would  permit  adultery,  fornication,  the 
teaching  and  propagation  of  obscenity,  deception,  usury  and 
all  other  fornLs  of  extortion.  It  would  provide  a  paradise  for 
every  species  of  economic  oppressor.  The  man  who  desired  to 
commit  any  of  these  crimes  could  logically  claim  immunity  from 
governmental  interference  on  the  ground  that  he  conceded  the 
same  liberty  to  everyone  else.  This  principle  would  be  of  great 
advantage  to  men  who  were  exceptionally  vicious,  exceptionally 
cunning,  and  exceptionally  selfish.  It  would  put  at  a  disad- 
vantage all  those  who  did  not  wish  to  exercise  this  kind  of 
individual  "liberty." 

Nor  is  this  all.  At  first  sight,  the  principle  of  equal  individual 
liberty  seems  to  authorize,  or  at  least  to  permit,  governmental 
repression  of  such  crimes  as  theft,  assualt,  and  homicide.  In 
reality  it  does  nothing  of  the  kind.  For  it  is  not  based  upon 
nor  determined  by  objective  considerations,  such  as  the  safety 
of  society  or  the  maximum  amount  of  human  welfare.  Both 
Kant  and  Spencer  express  the  principle  in  subjective  terms. 
The  will  of  the  individual  is  to  determine  the  limits  and  the 
application  of  the  principle.  "So  act,"  says  Kant,  "that  the 
free  use  of  thy  liberty  can  coexist  with  the  liberty  of  everyone 
else  according  to  a  universal  law."  In  Spencer's  formulation, 
"every  man  is  free  to  do  that  which  he  wills,  provided  he  in- 
fringes not  the  equal  freedom  of  any  other  man."  Therefore, 
each  individual  is  the  authoritative  interpreter  of  the  principle 
in  his  own  regard.  The  man  who  stealsi  does  not  violate  the 
principle,  so  long  as  he  does  not  ask  the  State  to  deny  the  same 
liberty  to  his  fellows.  The  murderer  is  likewise  safe  from  inter- 
ference if  he  will  concede  to  other  men  the  right  of  universal 
homicide.  As  pointed  out  above,  this  principle  should  be 
peculiarly  gratifying  to  the  exceptionally  vicious  and  exception- 
ally cunning;  also  to  those  possessed  of  exceptional  physical 
strength.  Many  if  not  all  such  persons  would  welcome  a  regime 
of  unrestrained  eompetition  in  fraud  and  violence.  With  im- 
munity from  legal  restraint,  they  would  be  willing  to  take  all 


ERRONEOUS  THEORIES  217 

the  risks  of  competing  in  criminality  with  their  less  "efficient" 
fellows. 

Admirers  of  Kant  may  question  this  interpretation  of  his 
principle.  They  may  claim  that  the  phrase,  "according  to  a 
universal  law,"  is  an  objective  limitation  upon  the  subjective 
and  arbitrary  interpretation  and  exercise  of  individual  liberty. 
The  claim  cannot  be  allowed.  The  "universal  law"  which  Kant 
had  in  mind  was  not  the  moral  law,  nor  the  civil  law,  nor  the 
divine  law.  It  w-as  simply  the  universal  law  of  liberty.  It 
could  be  violated  only  by  the  man  who  refused  to  grant  to  others 
the  liberty  that  he  claimed  for  himself.  Such  a  man  would  be 
acting  according  to  a  particular,  or  exceptional,  law  of  liberty. 
But  the  man  who  was  willing  to  concede  the  same  liberty  to 
others  could  indulge  in  wholesale  acts  of  injustice  without 
violating  the  Kantian  principle.  Nor  is  it  relevant  to  object 
that  such  conduct  if  universalized  would  destroy  human  society ; 
for  the  Kantian  principle  does  not  recognize  any  objective 
standard  or  consequence  as  the  determinant  of  individual  free- 
dom. Each  individual  is  authorized  to  apply  the  principle 
according  to  his  own  desires  and  conceptions,  unhindered  by 
any  consideration  of  social  consequences. 

THE    SOCIALIST    THEORY^ 

According  to  the  program  of  International  Socialism,  the  State 
would  assume  several  new  and  very  important  functions.  These 
are  mainly  economic,  but  they  also  include  a  large  extension  of 
State  control  over  the  family  and  education. 

The  Socialist  theory  holds  that  the  State  should  own  and 
operate  substantially  all  the  means  of  production;  that  is,  all 
land  used  for  commercial  and  industrial  purposes,  all  mines, 
all  but  the  smallest  farms,  and  all  except  the  very  small  indus- 
trial establishments  and  instruments  of  production  and  dis- 
tribution. The  great  majority  of  individuals  engaged  in  agri- 
cultural, industrial,  and  commercial  pursuits  would  be  employees 
of  the  State.     The  only  kinds  of  business,  whether  in  town  or 

•Cf.  Hillquit-Eyan,  Socialism:  Promise  or  Menace^  Skelton,  Socialism, 
A  Critical  Analysis.    Cathrein-Gettelmann,  Socialism. 


218  STATE   AND   CHURCH 

country,  owned  and  carried  on  by  individuals!  would  be  such 
very  small  concerns  as  could  be  managed  by  one  person,  or  at 
most,  by  one  person  with  the  assistance  of  one  or  two  employees. 

From  both  the  individual  and  the  social  viewpoint  this  would 
be  an  undesirable  extension  of  State  functions.  The  individual 
would  be  dependent  upon  the  State  throughout  his  whole  life, 
not  merely  for  protection  and  economic  opportunity,  but  for  his 
occupation  and  his  livelihood.  His  only  source  of  income  would 
be  his  salary,  and  for  that  he  would  be  dependent  entirely  upon 
the  State.  He  could  not  choose  between  that  condition  and  the 
management  of  a  business  of  his  own.  At  least,  such  would 
be  the  lot  of  the  vast  majority.  On  the  other  hand,  everything 
that  entered  into  the  individual's  consumption  would  have  to  be 
bought  from  the  State.  At  present  the  purchaser  of  goods  can 
make  a  choice  among  competing  dealers.  If  he  does  not  like 
a  certain  dealer  or  a  certain  kind  of  commodity,  he  can  supply 
his  wants  elsewhere  or  otherwise.  In  a  Socialist  regime  he 
would  be  compelled  to  select  from  the  small  number  of  standard- 
ized articles  provided  by  the  State.  In  a  word,  the  State  would 
be  the  only  seller  of  goods  as  well  as  the  only  buyer  of  labor. 
Even  if  men  obtained  a  hetter  and  more  secure  livelihood  in  a 
Socialist  society  than  they  now  obtain,  this  advantage  would  not 
compensate  them  for  the  lack  of  freedom  in  their  economic  con- 
tracts, and  the  lack  of  that  social  power  and  that  self-respect 
which  are  provided  by  private  property. 

The  combination  of  political  and  industrial  functions  in  the 
State  would  place  the  individual  entirely  at  the  mercy  of  bureau- 
crats and  majorities.  Human  beings  could  not  he  trusted  to 
exercise  justly  this  tremendous  power.  While  the  people  would, 
indeed,  have  the  legal  right  and  power  to  remove  any  set  of 
officials  at  the  elections,  we  must  remember  that  "the  people" 
is  never  a  simple  entity,  having  only  one  set  of  interests  and 
acting  unanimously.  In  political  affairs,  "the  people"  that 
determines  policies  is  never  more  than-  a  part  of  the  whole 
population.  It  is  at  most  a  majority;  sometimes  it  is  only  a  well 
organized  minority.  A  national  administration  that  possessed 
the  economic  and  political  power  conferred  by  Socialism  would 
be  much  more  difficult  to  dislodge  than  one  possessing  merely 


ERRONEOUS  THEORIES  219 

the  authority  conceded  by  our  present  political  system.  Under 
Socialism  a  government  could  be  maintained  in  office  indefinitely, 
through  a  combination  of  the  workers  in  the  principal  industries, 
and  would  be  able  to  subject  the  rest  of  the  population  to 
unlimited  economic  oppression. 

The  common  good'  would  be  enormously  impeded  by  the  at- 
tempt of  the  State  to  own  and  manage  the  means  of  production. 
In  the  words  of  Pope  Leo  XIII,  such  an  industrial  organization 
would  produce  universal  ''misery  and  degradation."  The  main 
reason  is  that  the  State  would  be  unable  to  command  either 
the  incentives  or  the  discipline  which  are  necessary  for  efficient 
production.  Under  Socialism  both  the  directors  and  the  directed 
would  be  remunerated  entirely  by  salaries.  There  would  be  no 
elastic  and  indefinite  gain  held  out  before  men  as  a  stimulus  to 
initiative,  hard  work  and  efficiency.  In  the  present  system  sub- 
stantially all  business  men  and  a  large  proportion  of  those  who 
are  compensated  by  salaries  and  wages,  have  some  reason  to  hope 
that  their  rewards  can  be  increased  to  an  indefinite  extent 
through  their  own  efforts.  In  a  Socialist  system  this  hope  would 
all  but  disappear.  Even  though  increases  in  salaries  and  wages 
might  be  appointed  for  those  who  exhibited  a  certain  degree  of 
productivity,  the  arrangement  would  necessarily  be  operated  in 
such  a  rigid  and  routine  fashion,  and  recognition  of  merit  would 
be  so  slow  and  halting,  as  to  stifle  incentive  at  its  source.  The 
promptness  with  which  efficiency  is  now  rewarded  would  be 
almost  entirely  wanting. 

Not  only  adequate  incentive  but  effective  discipline  would  be 
impossible.  The  great  majority  of  men  are  lazy.  To  a  great 
extent  they  are  kept  working  through  the  stimulus  of  fear.  They 
are  afraid  of  losing  their  jobs.  In  a  Socialist  regime  the  direc- 
tors of  industry  would  not  have  sufficient  power  to  discharge  lazy 
and  incompetent  workmen,  since  their  own  positions  would  be 
finally  dependent  upon  the  votes  of  those  under  their  direction. 
The  only  alternative  is  a  militaristic  organization  of  industry 
which  could  not  long  survive  in  a  democratic  State. 

The  Socialist  program  includes  a  large  extension  of  govern- 
mental control  over  the  family  and  education.  Indeed,  the 
majority  of  Socialists  regard  the  child  as  belonging  primarily 


220  STATE   AND   CHURCH 

to  the  State.  They  look  with  favor  upon  a  loosening  of  the 
marriage  bond,  and  the  continuation  of  the  marital  union  only 
so  long  as  the  two  parties  think  they  love  each  other.  The 
disastrous  effects  upon  the  welfare  and  progress  of  the  race  which 
would  follow  State  usurpation  of  most  important  parental  func- 
tions, and  State  encouragement  to  a  system  of  free  love,  are 
too  obvious  to  require  formal  or  detailed  description.  And 
State  monopoly  of  education  would  be  a  most  subtle  and 
destructive  assault  upon  individual  liberty. 

The  distrust  of  the  State  which  underlies  the  individualist 
theory  would  be  entirely  justified  if  political  society  had  an 
inherent  tendency  toward  the  Socialist  State.  Happily  there 
exists  no  such  tendency.  Indeed,  it  is  only  when  the  State  is 
prevented  from  exercising  and  developing  its  normal  functions 
that  the  danger  of  perversion  into  Socialism  can  become  con- 
siderable. The  true  and  rational  conception  of  State  functions 
avoids  the  vices  and  the  extremes  of  Socialism  no  less  than  of 
individualism.  This  conception  will  form  the  subject  of  the 
next  chapter. 


10.     THE  PROPER  FUNCTIONS  OF  THE  STATE 
By  Rev.  John  A.  Ryan,  D.D. 

The  end  of  the  State,  we  have  seen,  is  to  promote  the  welfare 
of  its  citizens,  as  a  whole,  as  members  of  families,  and  as  mem- 
bers of  social  classes.  Anyone  who  is  inclined  to  doubt  the 
propriety  of  including  the  second  and  third  of  these  clauses, 
will  dismiss  the  inclination  as  soon  as  he  looks  beneath  formulas 
and  fixes  his  attention  upon  realities. 

The  State  exists  and  functions  for  the  sake  of  human  beings. 
It  attains  this  end  primarily  by  safeguarding  those  interests 
that  are  common  to  all  the  persons  under  its  jurisdiction;  for 
example,  by  resisting  foreign  invasion  and  protecting  life  and 
property.  If  it  stops  at  this  point  it  will  leave  unprotected  not 
only  many  individual  interests,  but  many  elements  of  the  com- 
mon good,  many  aspects  of  the  general  welfare.  To  neglect  the 
integrity  of  the  family  or  the  prosperity  of  any  considerable 
social  class,  will  sooner  or  later  injure  society  as  a  whole.  To 
take  care  of  these  interests  is,  indirectly  at  least,  to  promote 
the  common  good.  Nor  is  this  all.  Since  individual  welfare 
is  the  ultimate,  though  not  strictly  the  formal,  object  of  the 
State,  that  object  ought  to  be  deliberately  promoted  by  the  State, 
whenever  it  cannot  be  adequately  furthered  by  any  other 
agency.^  To  deny  this  proposition  is  to  assume  that  men  have 
been  unable  to  achieve  a  political  organization  that  is  adequate 

»Cf.  Cronin,  The  Science  of  EtUcs,  II,  474:  "The  measure  of  State 
function,  therefore,  is  to  be  found  in  the  necessities  of  man  and  the  ina- 
bility of  the  individual  and  the  family  to  provide  these  necessities.  Any- 
thing, therefore,  which  is  necessary,  whether  for  the  individual  or  for 
society  at  large,  and  which  the  individual  or  the  family  is  not  in  a  position 
to  supply,  may  legitimately  be  regarded  as  included  in  the  end  of  the 
State." 

221 


222  STATE   AND   CHURCH 

to  safeguard  their  temporal  welfare.  However,  it  is  neither 
desirable  nor  practicable  for  the  State  to  provide  for  every 
individual  as  such.  It  can  promote  individual  welfare  best  by 
dealing  with  men  as  groups,  through  their  most  important  group 
relationships ;  therefore,  as  members  of  families,  and  as  members 
of  social  classes.  When  it  provides  for  the  needs  that  are  com- 
mon to  members  of  these  two  fundamental  forms  of  association, 
it  benefits  most  effectively  the  whole  number  of  its  component 
individuals. 

What  are  the  specific  policies  and  measures  by  which  the 
State  can  best  attain  the  objects  described  in  the  foregoing  para- 
graphs? To  answer  this  question  will  be  to  describe  the  proper 
functions  of  the  State. 

Among  political  writers  a  fairly  frequent  classification  of 
State  functions  is  into  necessary  and  optional,  or  essential  and 
non-essential.  The  former  are  "such  as  all  governments  must 
perform  in  order  to  justify  their  existence.  They  include  the 
maintenance  of  industrial  peace,  order,  and  safety,  the  protection 
of  persons  and  property,  and  the  preservation  of  external  secur- 
ity. They  are  the  original  primary  functions  of  the  State,  and 
all  States,  however  rudimentary  and  undeveloped,  attempt  to 
perform  them."^  They  may  be  enumerated  somewhat  more 
specifically  as  military,  financial,  and  civil.^  In  the  exercise  of 
its  military  function,  the  State  defends  itself  and  its  people  by 
force  against  foreign  aggression,  and  prevents  and  represses 
domestic  disorder.  The  financial  function  of  the  State  com- 
prises the  collection  and  expenditure  of  funds  for  the  mainte- 
nance and  operation  of  government.  Regulations  concerning  in- 
dividual rights,  contracts,  property,  disputes,  crime,  and  punish- 
ment, constitute  the  State's  civil  function. 

The  optional  or  unessential  functions  are  calculated  to  increase 
the  general  welfare,  but  they  could  conceivably  be  performed  in 
some  fashion  by  private  agencies.  They  comprise  public  works ; 
public  education;  public  charity;  industrial  regulations,  and 
health    and    safety    regulations."     Under    the    head    of    public 

'  Garner,  An  Introduction  to  Political  Science,  p.  318. 

» Holt,  An  Introduction  to  the  Study  of  Government,  pp.  268-281. 

♦  Holt,  op.  cit.,  pp.  285-305. 


THE  PROPER  FUNCTIONS  OF  THE  STATE       223 

works  are  comprised :  Control  of  coinage  and  currency  and  the 
conduct  of  banks;  the  postal  service,  telegraphs,  telephones,  and 
railroads ;  the  maintenance  of  lighthouses,  harbors,  rivers,  and 
roads;  the  conservation  of  natural  resources,  such  as  forests  and 
water  power,  and  the  ownership  and  operation  of  supply  plants 
and  municipal  utilities.  Public  education  may  include  not  only 
a  system  of  schools,  but  museums,  libraries,  art  galleries,  and 
scientific  bureaus,  such  as  those  concerned  with  the  weather  and 
with  agriculture.  In  the  exercise  of  the  function  of  public 
charity,  the  State  establishes  asylums,  hospitals,  almshouses,  cor- 
rective institutions,  provides  insurance  against  accidents,  sick- 
ness, old  age  and  unemployment,  and  makes  various  provisions 
of  material  relief  for  persons  in  distress.  In  the  field  of  regula- 
tion, as  distinguished  from  that  of  ownership,  operation,  or 
maintenance,  the  States  supervises  public  safety  and  industry. 
Regulations  of  the  former  kind  relate  to  quarantine,  vaccination, 
medical  inspection  of  school  children  and  of  certain  businesses 
and  professions,  and  protection  of  public  morals  in  the  matter 
of  pictures,  publications,  theatres  and  dance  halls.  Industrial 
regulation  extends  to  banks,  commerce,  business  combinations, 
and  the  relations  between  employer  and  employee. 

The  classification  of  State  functions  as  necessary  and  optional 
has  the  merit  of  presenting  a  comprehensive  view  of  political 
experience.  It  enables  us  to  see  how  States  have  interpreted 
their  scope,  and  distinguished  between  functions  that  are  essential 
and  functions  that  are  non-essential.  While  all  fully  developed 
States  have  regarded  as  essential  the  functions  which  are  so 
designated  in  the  foregoing  paragraphs,  not  all  have  agreed  in 
conceiving  the  so-called  optional  functions  as  of  that  character. 
Some  of  the  optional  functions  have  been  regarded  by  some 
States  as  primary  and  essential.  And  the  number  of  optional 
functions  that  have  been  undertaken  varies  greatly  among  the 
various  States.  The  factor  determining  the  course  of  the  States 
in  this  matter  has  been  mainly,  if  not  exclusively,  expediency. 

A  somewhat  analogous  classification  is  used  by  many  Catholic 
writers.  While  conforming  fully  with  political  experience,  it 
is  also  based  upon  fundamental  principles  of  ethics,  and  it  illus- 
trates the  principles  of  logic.    It  is  thus  stated  in  summary  form 


224  STATE   AND   CHURCH 

by  Cathrein.^  The  functions  of  the  State  are  twofold :  First,  to 
safeguard  the  juridical  order,  that  is,  to  protect  all  rights,  of 
individuals,  families,  private  associations,  and  the  Church; 
second,  to  promote  the  general  welfare  by  positive  means,  with 
respect  to  all  those  goods  that  contribute  to  that  end.  Sub- 
stantially the  same  classification  and  principle  is  laid  down  by 
Meyer,"  Casteleiu,^  Cronin,**  and  Lilly."  In  a  general  way  the 
primary  functions  in  this  classification  correspond  to  the  neces- 
sary or  essential  functions  in  the  grouping  made  by  the  political 
writers.  While  the  second  group  of  functions  denoted  by  the 
Catholic  writers  resembles  the  second  category  of  the  political 
science  manuals  in  a  general  way  as  regards  content,  there  is 
a  considerable  difference  of  principle.  The  secondary  functions 
described  by  the  political  writers  are  said  to  he  optional,  and 
their  optional  character  is  determined  mainly  by  the  varying 
experience  and  practice  of  particular  States;  but  the  positive 
promotion  of  general  welfare  is  regarded  by  the  Catholic  writers 
as  normal  and  necessary,  because  required  by  the  fundamental 
needs  of  human  beings.  According  to  the  Catholic  writers,  the 
difference  between  the  primary  and  secondary  functions  of  the 
State  is  not  a  difference  of  kind  but  only  of  degree.  As  noted 
by  Meyer,  the  primary  functions  are  not  sufficient.  The  State 
must  not  only  safeguard  rights,  but  promote  the  general  good 
by  positive  measures  of  helpfulness.^*'  This  is  the  general  prin- 
ciple. In  carrying  it  out,  the  State  may  properly  undertake 
some  particular  activities  which  are  not  obligatory,  but  only 
more  or  less  expedient. 

PRIMARY   FUNCTIONS 

The  concrete  activities  which  fall  under  the  primary  functions 
of  the  State  may  be  summarized  as  follows.  All  natural  rights 
must  receive  adequate  protection.     The  State  is  obliged  to  safe- 

'  Philosophia  Moralis,  No.  545. 

'  Institutiones  Juris  Naturalis,  II,  no.  317. 

'  Philosophia  Moralis  et  Sodalis,  p.  446. 

'  The  Science  of  Ethics,  II,  472-479. 

•  First  Principles  in  Politics,  ch.  IV. 

"Loc,  cit. 


THE  PROPER  FUNCTIONS  OF  THE  STATE   225 

guard  the  individuars  rights  to  life,  liberty,  property,  livelihood, 
good  name,  and  spiritual  and  moral  security.  Whence  it  follows 
that  laws  must  be  enacted  and  enforced  against  all  forms  of 
physical  assault  and  arbitrary  restraint;  against  theft,  robbery, 
and  every  species  of  fraud  and  extortion ;  against  all  apparently 
free  contracts  which  deny  the  opportunity  of  pursuing  a  liveli- 
hood on  reasonable  terms ;  against  calumny  and  detraction ;  and 
against  the  spiritual  and  moral  scandal  produced  by  false  and 
immoral  preaching,  teaching,  and  publication. 

In  the  individualistic  theory,  the  first  two  classes  of  enactments 
are  held  to  exhaust  the  functions  of  the  State,  apparently  on  the 
assumption  that  they  cover  all  the  individual's  rights.  This  is 
a  grossly  inadequate  conception.  Reasonable  opportunities  of 
livelihood,  reputation,  spiritual  and  moral  security,  are  all  among 
man's  primary  needs.  Without  them  he  cannot  develop  his  per- 
sonality to  a  reasonable  degree,  nor  live  an  adequate  life.  There- 
fore, they  fall  within  the  scope  of  his  natural  rights.  For  natural 
rights  include  all  those  moral  powers,  opportunities  and  im- 
munities which  the  individual  requires  in  order  to  attain  the 
end  of  his  nature,  to  live  a  reasonable  life.  Any  arbitrary  or 
unreasonable  interference  with  these  is  a  violation  of  the  rights 
of  the  individual.  Hence  the  unfair  competition  carried  on 
by  a  monopoly,  unreasonable  boycotts,  waige  contracts  for  less 
than  the  equivalent  of  a  decent  livelihood,  untrue  or  otherwise 
unjustifiable  statements  derogatory  to  a  man's  reputation,  utter- 
ances and  publications  calculated  to  corrupt  his  religion  or 
morals, — are  all  injurious  to  the  individual,  and  are  unreason- 
able interferences  with  the  security  and  development  of  his 
personality. 

All  the  foregoing  rights  should  be  safeguarded  by  the  State, 
not  only  as  exercised  by  the  individual,  but  also  as  involved  in 
the  reasonable  scope  of  associations.  Hence  the  family,  the 
Church  and  all  legitimate  private  societies  have  a  just  claim 
to  protection  by  the  State  in  the  pursuit  of  all  their  proper  ends. 
Men  have  a  right  to  pursue  their  welfare  not  only  by  individual 
effort  but  through  mutual  association. 

A  corollary  of  State  protection  of  rights  is  State  determination 
of  rights.     To  a  very  great  extent  the  reciprocal  limits  of  in- 


226  STATE   AND   CHURCH 

dividual  rights  cannot  be  satisfactorily  adjusted  by  the  individ- 
uals themselves.  This  fact  is  most  conspicuously  illustrated  in 
connection  with  propert}"  rights,  but  it  receives  frequent  ex- 
emplification in  other  sections  of  the  juridical  province. 

While  all  the  rights  above  described  have  a  general  claim 
upon  the  State  for  protection,  not  all  of  them  have  an  actual 
claim  to  adequate  protection  at  any  given  time.  This  is  a  ques- 
tion of  prudence  and  expediency.  What  the  State  may  normally 
be  expected  to  do,  is  one  thing;  what  it  is  here  and  now  able  to 
do,  is  quite  another  thing ;  for  example,  with  regard  to  false 
religious  teaching  and  scandalous  moral  teaching.  Perhaps  the 
most  comprehensive  and  practical  principle  that  can  be  laid 
down  is  this :  The  State  should  not  attempt  to  protect  any  right 
beyond  the  point  at  which  further  efforts  threaten  to  do  more 
harm  than  good. 

SECONDARY    FUNCTIONS 

These  can  be  conveniently  described  by  following  the  order 
outlined  in  the  paragraph  which  enumerated  the  so-called  op- 
tional functions.  In  general,  the  secondary  functions  cover  all 
activities  that  cannot  be  adequately  carried  on  by  private  effort, 
whether  individual  or  corporate. ^^ 

Public  Works.  Under  this  head  are  included  all  those  indus- 
tries and  institutions  which  the  State  not  merely  regulates,  but 
owns  and  manages.  The  control  of  coinage  and  currency  are 
undoubtedly  among  the  necessary  functions  of  government. 
Almost  equally  necessary  is  the  government  postal  service.  Tele- 
graphs, telephones,  railways,  water  supply  and  lighting  may  in 
a  sense  be  called  optional  functions,  since  the  general  welfare  does 
not  always  require  them  to  be  operated  by  the  State.  When  pub- 
lic operation  is  clearly  superior  to  private  operation,  all  things 
considered,  the  State  undoubtedly  neglects  its  duty  of  promoting 
the  common  welfare  if  it  fails  to  manage  these  utilities.  It  is 
a  necessary  part  of  the  State's  functions  to  provide  such  public 
safeguards  as  fire  departments,  lighthouses,  buoys,  and  beacons?; 
to  maintain  such  instrumentalities  of  communication  as  roads, 

"Cf.  Meyer,  op.  cit.,  II,  p.  289;  Cronin,  op.  cit.,  II,  474,  475. 


THE  PROPER  FUNCTIONS  OF  THE  STATE       227 

canals,  bridges,  and  wharves;  and  to  conserve  such  natural  re- 
sources as  forests,  water  powers,  and  watersheds.  None  of  these 
activities  can  be  satisfactorily  performed  by  private  enterprise. 

Public  Education.  As  the  child  belongs  primarily  to  the 
parents,  so  the  function  of  education  is  primarily  theirs.  Both 
these  propositions  are  demonstrated  by  the  facts  and  require- 
ments of  human  welfare.  In  very  exceptional  cases  only  can  the 
education  and  upbringing  of  the  child  be  controlled  and  carried 
on  as  well  by  the  State  as  by  the  parents.  Nevertheless,  the 
common  welfare  does  require  the  State  to  take  a  rather  im- 
portant part  in  the  work  of  education.  It  is  summarized  in  the 
following  excerpts  from  the  Pas-toral  Letter  of  the  American 
Hierarchy,  issued  in  1920. 

As  the  public  welfare  is  largely  dependent  upon  the  intelligence  of 
the  citizen,  the  State  has  a  vital  concern  in  education.  This  is  implied 
in  the  original  purpose  of  our  government  which,  as  set  forth  in  the 
preamble  to  the  Constitution,  is  "to  form  a  more  perfect  union,  estab- 
lish justice,  ensure  domestic  tranquility,  provide  for  the  common 
defense,  promote  the  general  welfare,  and  secure  the  blessings  of 
liberty  to  ourselves  and  our  posterity." 

In  accordance  with  these  purposes,  the  State  has  a  right  to  insist  that 
its  citizens  shall  be  educated.  It  should  encourage  among  the  people 
such  a  love  of  learning  that  they  will  take  the  initiative  and,  without 
constraint,  provide  for  the  education  of  their  children.  Should  they, 
through  negligence  or  lack  of  means  fail  to  do  so,  the  State  has  the 
right  to  establish  schools  and  take  every  other  legitimate  means  to  safe- 
guard its  vital  interests  against  the  dangers  that  result  from  ignorance. 
In  particular,  it  has  both  the  right  and  the  duty  to  exclude  the  teach- 
ing of  doctrines  which  aim  at  the  subversion  of  law  and  order  and 
therefore  at  the  destruction  of  the  State  itself. 

The  State  is  competent  to  do  these  things  because  its  essential  func- 
tion is  to  promote  the  general  welfare.  But  on  the  same  principle  it  is 
bound  to  respect  and  protect  the  rights  of  the  citizen,  and  especially  of 
the  parent.  So  long  as  these  rights  are  properly  exercised,  to  encroach 
upon  them  is  not  to  further  the  general  welfare,  but  to  put  it  in  peril. 
If  the  function  of  government  is  to  protect  the  liberty  of  the  citizen, 
and  if  the  aim  of  education  is  to  prepare  the  individual  for  the  rational 
use  of  his  liberty,  the  State  cannot  rightfully  or  consistently  make  edu- 
cation a  pretext  for  interfering  with  rights  and  liberties  which  the 
Creator,  not  the  State,  has  conferred.  Any  advantage  that  might 
accrue  even  from  a  perfect  system  of  State  education  would  be  more 
than  offset  by  the  wrong  which  the  violation  of  parental  rights  would 
involve. 


228  STATE   AND   CHURCH 

In  our  country,  government  thus  far  has  wisely  refrained  from  plac- 
ing any  other  than  absolutely  necessary  restrictions  upon  private  initia- 
tive. The  result  is  seen  in  the  development  of  our  resources,  the 
products  of  inventive  genius  and  the  magnitude  of  our  enterprises. 
But  our  most  valuable  resources  are  the  minds  of  our  children,  and  for 
their  development  at  least  the  same  scope  should  be  allowed  to  indi- 
vidual effort  as  is  secured  to  our  undertakings  in  the  material  order. 

The  spirit  of  our  people  in  general  is  adverse  to  State  monopoly,  and 
this  for  the  obvious  reason  that  such  an  absorption  of  control  would 
mean  the  end  of  freedom  and  initiative.  The  same  consequence  is  sure 
to  follow  when  the  State  attempts  to  monopolize  education;  and  the 
disaster  will  be  greater  inasmuch  as  it  will  affect,  not  simply  the  worldly 
interests  of  the  citizen,  but  also  his  spiritual  growth  and  salvation. 

There  are  other  public  educational  institutions  which  can 
scarcely  be  calledi  absolutely  necessary,  and  yet  which  are  so 
useful  that  they  may  very  properly  be  conducted  by  the  State. 
Such  are  museums,  art  galleries,  libraries,  zoological  gardens, 
scientific  bureaus,  laboratories,  and  experiment  stations.  The 
services  rendered  by  these  agencies  eontribute  much  to  the  com- 
mon welfare  and  they  could  not,  as  a  rule,  be  adequately  carried 
on  by  private  effort. 

Public  Charity.  The  principle  that  the  State  should  do  only 
those  things  which  cannot  be  done  as  well  by  private  action, 
applies  with  especial  force  to  the  field  of  charity.  In  general, 
this  principle  rests  upon  the  fundamental  truth  that  the  indi- 
vidual reaches  a  higher  degree  of  self-development  when  he  does 
things  for  himself  than  when  the  State  does  things  for  him.  In 
the  province  of  charity  this  fact  is  illustrated  with  regard  both 
to  the  receiver  and  the  giver.  The  former  is  more  likely  to  seek 
unnecessary  assistance  from  the  State  than  from  an  individual ; 
the  latter  is  more  likely  to  infuse  his  charity  with  human  sym- 
pathy than  is  the  State ;  and  his  incentives  to  charitable  action 
are  diminished  if  the  State  does  too  much.  In  both  cases  harm 
is  done  to  individual  development. 

Nevertheless,  the  charitable  functions  of  the  State  are  numer- 
ous and  important.  In  the  field  of  prevention,  it  can  and  should 
use  all  proper  and  possible  methods  to  provide  that  kind  of 
social  environment  which  renders  charitable  relief  unnecessary. 
Under  this  head  comes  a  large  list  of  industrial,  educational, 


THE  PROPER  FUNCTIONS  OF  THE  STATE   229 

sanitary  and  moral  provisions,  to  assure  people  a  reasonable 
minimum  of  the  material  conditions  of  living.  Some  of  these 
are  stated  in  detail  in  later  paragraphs  of  this  chapter.  In  the 
field  of  relief,  the  State  is  frequently  required  to  maintain  hos- 
pitals, asylums,  almshouses  and  corrective  institutions ;  to  grant 
subsidies  to  private  institutions  and  agencies  engaged  in  these 
works ;  and  even  to  provide  for  needy  persons  outside  of  institu- 
tions. Whether  and  to  what  extent  the  State  should  undertake 
any  of  these  tasks,  is  always  to  be  determined  by  the  answer 
which  the  actual  situation  gives  to  the  question :  can  the  State 
do  the  work  better,  all  things  considered,  than  private  agencies? 
"All  things  considered,"  refers  to  remote  as  well  as  immediate 
results.  For  example,  it  is  conceivable  that  the  State  might 
take  care  of  all  dependent  children  more  cheaply  than  could 
private  associations,  but  this  action  ought  not  to  be  taken  if  it 
would  lead  to  a  notable  decline  in  charitable  feeling,  responsibil- 
ity, and  initiative  among  individuals. 

Puhlic  Health,  Safety,  Morals,  and  Religion.  The  State  should 
protect  its  citizens  against  disease,  by  sanitary  regulations,  such 
as  those  relating  to  quarantine,  inoculation,  medical  inspection 
of  school  children,  impure  drugs,  adulterated  food,  and  the  dis- 
posal of  garbage.  It  should  safeguard  their  physical  integrity, 
by  such  measures  as  traffic  rules,  safety  requirements  for  public 
conveyances,  and  building  regulations.  It  should,  as  far  as 
possible,  provide  them  with  a  good  moral  environment  through 
the  regulation  or  repression  of  the  liquor  traffic,  through  the 
suppression  of  divorce,  prostitution,  public  gambling,  and  in- 
decent pictures,  printed  matter,  theatrical  productions,  and 
places  of  amusement.  Finally,  the  State  is  under  obligation  to 
protect  and  promote  religion  in  all  ways  that  are  lawful  and 
effective.  Here  we  may  appropriately  quote  the  words  of  Pope 
Benedict  XV: 

Let  princes  and  rulers  of  the  people  bear  this  in  mind  and  bethink 
themselves  whether  it  be  wise  and  salutary,  either  for  public  authority 
or  for  the  nations  themselves,  to  set  aside  the  holy  religion  of  Jesus 
Christ,  in  which  that  very  authority  may  find  such  powerful  support 
and  defense.  Let  them  seriously  consider  whether  it  be  the  part  of 
political  wisdom  to  exclude  from  the  ordinance  of  the  State  and  from 
public  instruction,  the  teaching  of  the  Gospel  and  of  the  Church,    Only 


230  STATE   AND   CHURCH 

too  well  does  experience  shoAv  that  when  religion  is  banished,  human 
authority  totters  to  its  fall.  That  which  happened  to  the  first  of  our 
race  when  he  failed  in  his  duty  to  God,  usually  happens  to  nations  as 
well.  Scarcely  had  the  will  in  him  rebelled  against  God  when  the  pas- 
sions arose  in  rebellion  against  the  will;  and  likewise,  when  the  rulers 
of  the  people  disdain  the  authority  of  God,  the  people  in  turn  despise 
the  authority  of  men.  There  remains,  it  is  true,  the  usual  expedient  of 
suppressing  rebellion  by  force;  but  to  what  effect?  Force  subdues  the 
bodies  of  men,  not  their  souls. ^^ 

All  these  matters  are  of  vital  importance  for  public  welfare, 
and  some  of  them  are  even  included  within  the  primary  functions 
of  the  State,  inasmuch  as  they  involve  the  protection  of  natural 
rights.  None  of  them  can  he  adequately  dealt  with  by  private 
effort. 

Industrial  Regulation.  Owing  to  the  complexity  of  modern 
industrial  conditions,  this  function  of  the  State  is  more  impor- 
tant than  in  any  preceding  age.  Owing  to  its  effect  upon  the 
pecuniary  interests  of  individuals,  it  has  been  more  strongly 
criticised  than  any  other  activity  of  the  State.  Not  much  opposi- 
tion has  been  offered  to  State  regulation  of  banks.  All  reason- 
able men  recognize  that  the  public  must  be  protected  through 
requirements  concerning  incorporation,  minimum  of  capital  and 
surplus,  liability  of  stockholders,  nature  of  investments,  amount 
and  kind  of  reserves,  the  isf?uing  of  notes,  and  public  inspection 
and  supervision. 

The  regulation  of  commerce,  public  utilities  and  manufactures, 
has  a  varied  scope  and  may  be  exercised  in  various  ways.  Foreign 
commerce  may  be  regulated  through  taxes  and  embargoes  on 
imports  and  exports,  and  by  other  methods  of  restriction.  The 
regulation  of  domestic  commerce  takes  many  forms :  intoxicating 
liquors,  tobacco,  explosives,  drugs  and  other  commodities  are 
fnibjected  to  a  system  of  licensing,  or  special  taxation,  or  other 
kinds  of  legal  supervision ;  railroads  are  forbidden  to  exact  more 
than  certain  maximum  charges  for  carrying  goods  and  pas- 
sengers, and  are  compelled  to  maintain  certain  standards  of 
service ;  and  such  municipal  utilities  as  street  railways  and  light- 
ing concerns  must  submit  to  similar  requirements.     Commercial 

"  Encyclical,  Ad  Beatissimi,  Nov.  1,  1914. 


THE  PROPER  FUNCTIONS  OF  THE  STATE   231 

contracts  which  are  clearly  extortionate,  such  as  loans  of  money 
at  usurious  rates,  are  generally  prohibited  by  law.  In  this  mat- 
ter the  policy  of  governments  is  not  in  accord  with  the  individu- 
alistic theory  that  all  technically  "free"  contracts  ought  to  be 
legally  enforced.  As  a  matter  of  fact,  such  contracts  are  not 
free  in  any  fair  sense.  All  the  foregoing  reg-ulations  promote 
the  public  welfare  and  are  evidently  among  the  proper  functions 
of  the  State. 

The  most  important  public  regulation  of  manufactures  is 
that  which  strives  to  prevent  unfair  dealing  and  extortion  by 
monopolistic  corpoirations.  In  some  form  this  is  a  very  ancient 
practice  of  the  State.  Many  centuries  ago,  legislators  became 
aware  that  human  beings  cannot  be  trusted  to  exercise  monopoly 
power  with  fairness  to  either  competitors  or  consumers.  Today 
the  most  enlightened  governments  have  numerous  and  complex 
statutes  to  prevent  and  punish  both  these  forms  of  injustice. 
Such  measures  are  clearly  justified,  not  only  to  promote  the 
public  good,  but  also  as  an  exercise  of  the  primary  function  of 
the  State,  namely,  the  protection  of  natural  rights.  They  are 
intended  to  prevent  and  punish  unjust  dealing  and  extortion. 
Nevertheless,  they  have  not  adequately  attained  that  end.  Addi- 
tional measures  are  required,  to  limit  still  further  the  "indi- 
vidual freedom"  of  the  monopolist  to  treat  his  fellows  unjustly. 
Legal  determination  of  maximum  prices,  government  regulation 
of  supply  and  distribution,  and  State  competition  in  the  manu- 
facturing or  other  business!  carried  on  by  a  monopolistic  con- 
cern,— are  the  principal  new  methods  that  have  been  suggested. 
In  so  far  as  they  are  necessary  and  would  prove  adequate  to 
protect  the  general  welfare,  they  can  undoubtedly  be  classed 
among  the  proper  functions  of  the  State.  Since  the  main  object 
is  to  prevent  the  imposition  of  extortionate  prices  upon  the  con- 
sumer and  the  receipt  of  excessive  profits  and  interest  by  the 
monopoly,  these  and  all  other  regulatory  measures  are  directed 
against  that  "rapacious  usury,  which,  although  more  than  once 
condemned  by  the  Church,  is  nevertheless,  under  a  different 
guise  but  with  the  like  injustice,  still  practiced  by  covetous 
and  grasping  men."^^ 

"  Pope  Leo  XIII,  On  the  Condition  of  Labor. 


232  STATE   AND   CHURCH 

Probably  the  most  necessary  and  beneficent  group  of  industrial 
regulations  are  those  which  apply  to  the  labor  contract  and  the 
conditions  of  labor.  The  principal  subjects  covered  are  wages, 
hours  of  labor,  child  lalbor,  woman  labor,  safety  and  sanitation 
in  work  places,  accidents,  sickness,  old  age  and  unemployment. 
As  regards  wages,  legislation  has  been  enacted  regulating  the 
manner  and  frequenc}^  of  payment,  and  fixing  minimum  rates 
of  remuneration.  Underlying  most  of  the  latter  measures  is  the 
theory  that  no  wa-ge  earner  should  be  required  to  accept  less 
than  the  equivalent  of  a  decent  livelihood.  So  long  as  millions 
of  workers  are  unable  to  obtain  this  decent  minimum  through 
their  own  efforts  or  through  the  benevolence  of  the  employer, 
they  have  clearly  the  right  to  call  upon  the  intervention  of  the 
State.  In  other  words,  the  enactment  of  minimum  wage  legis- 
lation is  among  the  State's  primary  as  well  as  secondary  func- 
tions. Laws  prohibiting  an  excessively  long  working  day,  the 
employment  of  young  children,  the  employment  of  women  in 
occupations  unsuited  to  their  sex,  the  existence  of  unsafe  and 
unsanitary  work  places, — are  all  likewise  included  among  both 
the  primary  and  the  secondary  functions  of  government.  Legal 
provisions  for  the  prevention  and  adjustment  of  industrial  dis- 
putes, and  to  insTire  the  workers  against  accidents,  sickness,  un- 
employment, invalidity  and  old  age,  have  been  made  by  various 
countries.  They  evidently  represent  a  normal  exercise  of,  at 
least,  the  secondary  functions  of  the  State." 

To  the  foregoing  legal  measures  for  the  protection  of  labor 
may  pertinently  be  applied  the  principle  laid  down  by  Pope 
Leo  XIII:  "Whenever  the  general  interest,  or  any  particular 
class  suffers  or  is  threatened  with  injury  which  can  in  no  other 
way  be  met  or  prevented,  it  is  the  duty  of  the  public  authority 
to  intervene."  Indeed,  the  great  Pontiif  himself  applied  the 
principle  quite  specifically  to  the  conditions  and  needs  of  the 

"Cf.  Social  Reconstruction  Program  of  the  Four  American  Bishops,  in 
The  Church  and  Labor  (Macmillan).  An  excellent  and  fundamental  state- 
ment of  the  economic  functions  of  the  State  will  be  found  in  Institutiones 
Juris  NaturaUs,  by  Theodore  Meyer,  S.J.,  II,  pp.  683-689.  Uninstructed 
persons  who  think  that  legislation  for  a  minimum  wage  and  for  social 
insurance  is  "socialistic"  will  have  a  better  notion  of  Catholic  social 
teaching  after  reading  these  paragraphs. 


THE  PROPER  FUNCTIONS  OF  THE  STATE       233 

working  class.  He  said:  "When  there  is  question  of  defending 
the  rights  of  individuals,  the  poor  and  helpless  have  a  claim  to 
especial  consideration.  The  richer  class  have  many  ways  of 
shielding  themselves,  and  stand  less  in  need  of  help  from  the 
State ;  whereas,  those  who  are  hadly  off  have  no  resources  of  their 
own  to  fall  back  upon,  and  must  chietly  depend  upon  the  assist- 
ance of  the  State.  And  it  is  for  this  reason  that  wage-earners, 
who  are  undoubtedly  among  the  weak  and  necessitous,  should 
be  specially  cared  for  and  protected  by  the  government.  "^^ 

Our  discussion  of  the  end  and  functions  of  the  State  may 
fittingly  close  with  the  following  declaration  of  the  great  Catho- 
lic authority  on  law,  Francisco  Suarez : 

"The  object  of  civil  legislation  is  the  natural  welfare  of  the 
community  and  of  its  individual  members,  in  order  that  they 
may  live  in  peace  and  justice,  with  a  sufficiency  of  those  goods 
that  are  necessary  for  physical  conservation  and  comfort,  and 
with  those  moral  conditions  which  are  required  for  private  well- 
being  and  public  prosperity."^® 

"  Encyc,  On  the  Condition  of  Labor. 
"  De  Lepibus,  1.  3,  c.  11,  sec.  7. 


11.     LAW  AND  LIBERTY 

Extracts  from  the  Encyclical  Letter, 
Lihertas  Praestantissimum,  June  20,  1888. 

By  Pope  Leo  XIII 

Human  liberty  necessarily  stands  in  need  of  light  and  strength 
to  direct  its  actions  to  good  and  to  restrain  them  from  evil. 
Without  this,  the  freedom  of  our  will  would  be  our  ruin.  First 
of  all  there  must  be  law ;  that  is,  a  fixed  rule  of  teaching  what 
is  to  be  done  and  what  is  to  be  left  undone.  This  rule  cannot 
affect  the  lower  animals  in  any  true  sense,  since  they  act  of 
necessity,  following  their  natural  instinct,  and  cannot  of  them- 
selves act  in  any  other  way.  On  the  other  hand,  as  was  said 
above,  he  who  is  free  can  either  act  or  not  act,  can  do  this  or 
do  that,  as  he  pleases,  because  his  judgment  precedes  his  choice. 
And  his  judgment  not  only  decides  what  is  right  or  wrong  of  its 
own  nature,  but  also  what  is  practically  good  and  therefore  to 
be  chosen,  and  what  is  practically  evil  and  therefore  to  be 
avoided.  In  other  words,/fhe  reason  prescribes  to  the  will  what 
it  should  seek  after  or  shun,  in  order  to  the  eventual  attainment 
of  man's  last  end,  for  the  sake  of  which  all  his  actions  ought  to  be 
performed^- 'This  ordination  of  reason  is  called  law.  In  man's 
free  will,  therefore,  or  in  the  moral  necessity  of  our  voluntary 
acts  being  in  accordance  with  reason,  lies  the  very  root  of  the 
necessity  of  law.  Nothing  more  foolish  can  be  uttered  or  con- 
ceived than  the  notion  that  because  man  is  free  by  nature,  he 
is  therefore  exempt  from  law.  Were  this  the  case,  it  would 
follow  that  to  become  free  we  must  be  deprived  of  reason; 
whereas  the  truth  is  Xhoijme  are  bound  to  submit  to  law  pre- 
cisely because  we  are  free  by  our  very  nature/  For  law  is  the 

834 


LAW  AND  LIBERTY  235 

guide  of  man's  actions;  it  turns  him  towards  good  by  its  rewards, 
and  detei*s  him  from  evil  by  its  punishments. 
/Foremost  in  this  office  comes  the  natural  law,  which  is  written 
and  engraved  in  the  mind  of  every  man ;  and  this  is  nothing  but 
-.QUE^ reason, ^commanding  us  to  do  right  and  forbidding  sin. 
Nevertheless  all  prescriptions  of  human  reason  can  have  force 
of  law  only  in  as  much  as  they  are  the  voice  and  the  interpreters 
of  some  higher  power  on  which  our  reason  and  liberty  necessarily 
depend.  For,  since  the  force  of  law  consists  in  the  imposing  of 
obligations  and  the  granting  of  rights,  authority  is  the  one  and 
only  foundation  of  all  law — the  power,  that  is,  of  fixing  duties 
and  defining  rights,  as  also  of  assigning  the  necessary  sanctions 
of  reward  and  chastisement  to  each  and  all  of  its  commands. 
But  all  this,  clearly,  cannot  be  found  in  man,  if,  as  his  own 
supreme  legislator,  he  is  to  be  the  rule  of  his  own  actions.  It 
follows  therefore  that/fKe  law  of  nature  is  the  same  thing  as  the 
eternal  law,  implanted  in  rational  creatures,  and  inclining  them 
to  their  right  action  and  en^  and  can  be  nothing  else  but  the 
eternal  reason  of  God,  the  Creator  and  Ruler  of  all  the  world. 
To  this  rule  of  action  and  restraint  of  evil  God  has  vouchsafed 
to  give  special  and  most  suitable  aids  for  strengthening  and 
ordering  the  human  will.  The  first  and  most  excellent  of  these 
is  the  power  of  His  divine  grace,  whereby  the  mind  can  be 
enlightened  and  the  will  wholesomely  invigorated  and  moved 
to  the  constant  pursuit  of  moral  good,  so  that  the  use  of  our 
inborn  liberty  becomes  at  once  less  difficult  and  less  dangerous. 
Not  that  the  divine  assistance  hinders  in  any  way  the  free  move- 
ment of  our  will ;  just  the  contrary,  for  grace  works  inwardly 
in  man  and  in  harmony  with  his  natural  inclinations,  since  it 
flows  from  the  very  Creator  of  his  mind  and  will,  by  whom  all 
things  are  moved  in  conformity  with  their  nature.  As  the 
Angelic  Doctor  points  out,  it  is  because  divine  grace  comes  from 
the  Author  of  nature,  that  it  is  so  admirably  adapted  to  be  the 
safeguard  of  all  natures,  and  to  maintain  the  character, 
efficiency,  and  operations  of  each. 

What  has  been  said  of  the  liberty  of  individuals  is  no  less 
applicable  to  them  when  considered  as  bound  together  in  civil 
society.     For,  what  reason  and  the  natural  law  do  for  individ- 


236  STATE   AND   CHURCH 

uals,  that  human  law,  promulgated  for  their  good,  does  for  the 
citizens  of  States.  Of  the  laws  enacted  by  men,  some  are  con- 
cerned with  what  is  good  or  bad  by  its  very  nature ;  and  they 
command  men  to  follow  after  what  is  right  and  to  shun  what 
is  wrong,  adding  at  the  same  time  a  suitable  sanction.  But 
such  laws  by  no  means  derive  their  origin  from  civil  society; 
because  just  as  civil  society  did  not  create  human  nature,  so 
neither  can  it  be  said  to  be  the  author  of  the  good  which 
befits  human  nature,  or  of  the  evil  which  is  contrary  to  it. 
Laws  come  before  men  live  together  in  society,  and  have  their 
origin  in  the  natural,  and  consequently  in  the  eternal  law.  The 
precepts,  therefore,  of  the  natural  law,  contained  bodily  in  the 
laws  of  men,  have  not  merely  the  force  of  human  law,  but  they 
possess  that  higher  and  more  august  sanction  which  belongs 
to  the  law  of  nature  and  the  eternal  law.  And  within  the  sphere 
of  this  kind  of  laws,  the  duty  of  the  civil  legislator  is,  mainly, 
to  keep  the  community  in  obedience  by  the  adoption  of  a  com- 
mon discipline  and  by  putting  restraint  upon  refractory  and 
viciously  inclined  men,  so  that,  deterred  from  evil,  they  may 
turn  to  what  is  good,  or  at  any  rate  may  avoid  causing  trouble 
and  disturbance  to  the  State.  Now  there  are  other  enactments 
of  the  civil  authority  which  do  not  follow  directly,  but  some- 
what remotely,  from  the  natural  law,  and  decide  many  points 
which  the  law  of  nature  treats  only  in  a  general  and  indefinite 
way.  For  instance,  though  nature  commands  all  to  contribute 
to  the  public  peace  and  prosperity,  still  whatever  belongs  to 
the  manner  and  circumstances,  and  conditions  under  which  such 
service  is  to  be  rendered  must  be  determined  by  the  wisdom  of 
men  and  not  by  Nature  herself.  It  is  in  the  constitution  of  these 
particular  rules  of  life,  suggested  by  reason  and  prudence,  and 
put  forth  by  competent  authority,  that  human  law,  properly  so 
called,  consists,  binding  all  citizens  to  work  together  for  the 
attainment  of  the  common  end  proposed  to  the  community,  and 
forbidding  them  to  depart  from  this  end;  and  in  so  far  as 
human  law  is  in  conformity  with  the  dictates  of  nature,  leading 
to  what  is  good,  and  deterring  from  evil. 

From  this  it  is  manifest  that  the  eternal  law  of  God  is  the  sole 
standard  and  rule  of  human  liberty,  not  only  in  each  individual 


LAW  AND  LIBERTY  237 

man,  but  also  in  the  community  and  civil  society  whicli  men 
constitute  when  united.  Therefore,  the  true  liberty  of  human 
society  doea  not  consist  in  every  man  doing  what  he  pleases,  for 
this  would  simply  end  in  turmoil  and  confusion,  and  bring  on 
the  overthrow  of  the  State ;  but  rather  in  this,  that  through  the 
injunctions  of  the  civil  law  all  may  more  easily  conform  to  the 
prescriptions  of  the  eternal  law.  Likewise,  the  liberty  of  those 
who  are  in  authority  does  not  consist  in  the  power  to  lay  un- 
reasonable and  capricious  commands  upon  their  subjects,  which 
would  equally  be  criminal  and  would  lead  to  the  ruin  of  the 
commonwealth;  but  the  binding  force  of  human  laws  is  in  this, 
that  they  are  to  be  regarded  as  applications  of  the  eternal  law, 
and  incapable  of  sanctioning  anything  which  is  not  contained 
in  the  eternal  law,  as  in  the  principle  of  all  law.  Thus  St. 
Augustin  most  wisely  says:  "I  think  that  you  can  see,  at  the 
same  time,  that  there  is  nothing  just  and  lawful  in  that  temporal 
law,  unless  what  men  have  gathered  from  this  eternal  law.  "^ 
If,  then,  by  any  one  in  authority,  something  be  sanctioned  out 
of  conformity  with  the  principles  of  right  reason,  and  con- 
sequently hurtful  to  the  commonwealth,  such  an  enactment  can 
have  no  binding  force  of  law,  as  being  no  rule  of  justice,  but 
certain  to  lead  men  away  from  that  good  which  is  the  very  end 
of  civil  society.^ 

'  De  Libera  Arbitrio,  lib.  i,  cap.  6,  n.  15. 

' ' '  The  State,  then,  has  a  sacred  claim  upon  our  respect  and  loyalty.  It 
may  justly  impose  obligations  and  demand  sacrifices,  for  the  sake  of  the 
common  welfare  which  it  is  established  to  promote.  It  is  the  means  to  an 
end,  not  an  end  in  itself;  and  because  it  receives  its  power  from  God,  it 
cannot  rightfully  exert  that  power  through  any  act  or  measure  that  would 
be  at  variance  with  the  divine  law,  or  with  the  divine  economy  for  man 's 
salvation.  As  long  as  the  State  remains  within  its  proper  limits  and  really 
furthers  the  common  good,  it  has  a  right  to  our  obedience.  And  thia 
obedience  we  are  bound  to  render,  not  merely  on  grounds  of  expediency 
but  as  a  conscientious  duty.  'Be  subject  of  necessity,  not  only  for  wrath 
but  also  for  conscience  sake. ' 

' '  The  end  for  which  the  State  exists  and  for  which  authority  is  given  it, 
determines  the  limit  of  its  powers.  It  must  respect  and  protect  the  divinely 
established  rights  of  the  individual  and  of  the  family.  It  must  safeguard 
the  liberty  of  all,  so  that  none  shall  encroach  upon  the  rights  of  others. 
But  it  may  not  rightfully  hinder  the  citizen  in  the  discharge  of  his  consci- 
entious obligation,  and  much  less  in  the  performance  of  duties  which  he 
owes  to  God.     To  all  commands  that  would  prevent  him  from  worshipping 


238  STATE   AND   CHURCH 

Therefore,  the  nature  of  human  liberty,  however  it  be  con- 
sidered, whether  in  individuals  or  in  society,  whether  in  those 
in  command  or  in  those  who  obey,  supposes  the  necessity  of 
obedience  to  some  supreme  and  eternal  law,  which  is  no  other 
than  the  authority  of  God,  commanding  good  and  for'bidding 
evil.  And  so  far  from  this  most  just  authority  of  God  over 
men,  diminishing,  or  even  destroying  their  liberty,  it  protects 
and  perfects  it,  for  the  real  perfection  of  all  creatures  is  found 
in  the  prosecution  and  attainment  of  their  respective  ends;  but 
the  supreme  end  to  which  human  libert}-  must  aspire  is  God. 

These  precepts  of  the  truest  and  highest  teaching,  made  known 
to  us  by  the  light  of  reason  itself,  the  Church,  instructed  by  the 
example  and  doctrine  of  her  divine  Author,  has  ever  propagated 
and  asserted;  for  she  has  ever  made  them  the  measure  of  her 
office  and  of  her  teaching  to  the  Christian  nations.  As  to  morals, 
the  laws  of  the  Gospel  not  only  immeasurably  surpass  the  wis- 
dom of  the  heathen,  but  are  an  invitation  and  an  introduction 
to  a  state  of  holiness  unknown  to  the  ancients;  and,  bringing 
man  nearer  to  God,  they  make  him  at  once  the  possessor  of  a 
more  perfect  liberty.  Thus  the  powerful  influence  of  the 
Church  has  ever  been  manifested  in  the  custody  and  protection 
of  the  civil  and  political  liberty  of  the  people.  The  enumera- 
tion of  its  merits  in  this  respect  does  not  belong  to  our  present 
purpose.  It  is  sufficient  to  recall  the  fact  that  slavery,  that 
old  reproach  of  the  heathen  nations,  was  mainly  abolished  by 
the  beneficent  efforts  of  the  Church.  The  impartiality  of  law 
and  the  true  brotherhood  of  man  were  first  asserted  by  Jesus 
Christ ;  and  His  apostles  reechoed  His  voice  when  they  declared 
that  in  future  there  was  to  be  neither  Jew,  nor  Gentile,  nor 
Barbarian,  nor  Scythian,  but  all  were  brothers  in  Christ.  So 
powerful,  so  conspicuous  in  this  respect,  is  the  influence  of  the 
Church,  that  experience  abundantly  testifies  how  savage  customs 
are  no  longer  possible  in  any  land  where  she  has  once  set  her 
foot;  but  that  gentleness  speedily  takes  the  place  of  cruelty, 
and  the  light  of  truth  quickly  dispels  the  darkness  of  barbarism. 

the  Creator  in  spirit  and  truth,  the  citizen  will  uphold  his  right  by  saying 
with  the  Apostles:  'We  ought  to  obey  God  rather  than  men.'  " — From 
the  Pastoral  Letter  of  the  American  Hierarchy,  1920. 


LAW  AND  LIBERTY  239 

Nor  has  the  Church  been  less  lavish  in  the  benefits  she  has  con- 
ferred on  civilized  nations  in  every  age,  either  by  resisting  the 
tyranny  of  the  wicked,  or  by  protecting  the  innocent  and  help- 
less from  injury;  or  finally  by  using  her  influence  in  the  sup- 
port of  any  form  of  government  which  commended  itself  to 
the  citizens  at  home,  because  of  its  justice,  or  was  feared  by 
their  enemies  without,  because  of  its  power. 

Moreover,  the  highest  duty  is  to  respect  authority,  and  obedi- 
ently to  submit  to  just  law ;  and  by  this  the  members  of  a  com- 
munity are  efifectually  protected  from  the  wrongdoing  of  evil 
men.  Lawful  power  is  from  God,  and  whosoever  resisteth 
authority  resisteth  the  ordinance  of  God;  wherefore  obedience 
is  greatly  ennobled  when  subjected  to  an  authority  which  is  the 
most  just  and  supreme  of  all.  But  where  the  power  to  command 
is  wanting,  or  where  a  law  is  enacted  contrary  to  reason,  or  to 
the  eternal  law,  or  to  some  ordinance  of  God,  obedience  is 
unlawful,  lest,  while  obeying  man,  we  become  disobedient  to 
God.  Thus,  an  effectual  barrier  being  opposed  to  tyranny,  the 
authority  in  the  State  will  not  have  all  its  own  way,  but  the 
interests  and  rights  of  all  will  be  safeguarded — the  rights  of 
individuals,  of  domestic  society,  and  of  all  the  members  of  the 
commonwealth;  all  being  free  to  live  according  to  law  and  right 
reason ;  and  in  this,  as  We  have  shown,  true  liberty  really 
consists. 

We  must  now  consider  briefly  liberty  of  speech,  and  liberty  of 
the  Press.^  It  is  hardly  necessary  to  say  that  there  can  be  no 
such  right  as  this,  if  it  be  not  used  in  moderation,  and  if  it  pass 
beyond  the  bounds  and  end  of  all  true  liberty.  For  right  is  a 
moral  power  which — as  We  have  before  said  and  must  again 
and  again  repeat^ — it  is  absurd  to  suppose  that  nature  has  ac- 
corded indifferently  to  truth  and  falsehood,  to  justice  and  in- 
justice. Men  have  a  right  freely  and  prudently  to  propagate 
throughout  the  State  what  things  soever  are  true  and  honorable, 
so  that  as  many  as  possible  may  possess  them ;  but  lying  opinions, 
than  which  no  mental  plague  is  greater,  and  vices  which  corrupt 
the  heart  and  moral  life,  should  be  diligently  repressed  by  public 

'  See  sec.  12  in  chapter  II. 


240  STATE   AND   CHURCH 

authority,  lest  thpy  insidiously  work  the  ruin  of  the  State. 
The  excesses  of  an  unbridled  intellect,  which  unfailingly  end 
in  the  oppression  of  the  untutored  multitude,  are  no  less  rightly 
controlled  by  the  authority  of  the  law  than  are  the  injuries 
inflicted  by  violence  upon  the  weak.  And  this  all  the  more 
surely,  because  by  far  the  greater  part  of  the  community  is 
either  absolutely  unable,  or  able  only  with  great  difficulty,  to 
escape  from  illusions  and  deceitful  subtleties,  especially  such 
as  flatter  the  passions.  If  unbridled  license  of  speech  and  of 
writing  be  granted  to  all,  nothing  will  remain  sacred  and 
inviolate;  even  the  highest  and  truest  mandates  of  nature,  justly 
held  to  be  the  common  and  noblest  heritage  of  the  human  race, 
will  not  be  spared.  Thus,  truth  being  graduall}^  obscured  by 
darkness,  pernicious  and  manifold  error,  as  too  often  happens, 
will  easily  prevail.  Thus,  too,  license  will  gain  what  liberty 
loses;  for  liberty  will  ever  be  more  free  and  secure,  in  pro- 
portion as  license  is  kept  in  fuller  restraint.  In  regard,  how- 
ever, to  all  matters  of  opinion  which  God  leaves  to  man's  free 
discussion,  full  liberty  of  thought  and  of  speech  is  naturally 
within  the  right  of  every  one;  for  such  liberty  never  leads  men 
to  suppress  the  truth,  but  often  to  discover  it  and  make  it 
known. 

A  like  judgment  must  be  passed  upon  what  is  called  liberty 
of  teaching.  There  can  be  no  doubt  that  truth  alone  should 
imbue  the  minds  of  men ;  for  in  it  are  found  the  well-being, 
the  end,  and  the  perfection  of  every  intelligent  nature;  and 
therefore  nothing  but  truth  should  be  taught  both  to  the  igno- 
rant and  to  the  educated,  so  as  to  bring  knowledge  to  those 
who  have  it  not,  and  to  preserve  it  in  those  who  possess  it.  For 
this  reason  it  is  plainly  the  duty  of  all  who  teach  to  banish 
error  from  the  mind,  and  by  sure  safeguards  to  close  the  entry 
to  all  false  convictions.  From  this  it  follows,  as  is  evident,  that 
the  liberty  of  which  We  have  been  speaking,  is  greatly  opposed 
to  reason,  and  tends  absolutely  to  pervert  men's  minds,  in  as 
much  as  it  claims  for  itself  the  right  of  teaching  whatever  it 
pleases — a  liberty  which  the  State  cannot  grant  without  failling 
in  its  duty.  And  the  more  so,  because  the  authority  of  teachers 
has  great  weight  with  their  hearers,  who  can  rarely  decide  for 


LAW  AND  LIBERTY  241 

themselves  as  to  the  truth  or  falsehood  of  the  instruction  given 
to  them. 

Wherefore,  this  liberty  also,  in  order  that  it  may  deserve  the 
name,  must  be  kept  within  certain  limits,  lest  the  office  of  teach- 
ing be  turned  with  impunity  into  an  instrument  of  corruption. 
Now  truth,  which  should  be  the  only  subject-matter  of  those 
who  teach,  is  of  two  kinds,  natural  and  supernatural.  Of 
natural  truths,  such  as  the  principles  of  nature  and  whatever  is 
derived  from  them  immediately  by  our  reason,  there  is  a  kind 
of  common  patrimony  in  the  human  race.  On  this,  as  on  a  firm 
basis,  morality,  justice,  religion,  and  the  very  bonds  of  human 
society  rest ;  and  to  allow  people  to  go  unharmed  who  violate 
or  destroy  it  would  be  most  impious,  most  foolish,  and  most 
inhuman.  But  with  no  less  religious  care  must  we  preserve 
that  great  and  sacred  treasure  of  the  truths  which  God  Himself 
has  taught  us.  By  many  and  convincing  arguments,  often 
used  by  defenders  of  Christianity,  certain  leading  truths  have 
been  laid  down:  Namely,  that  some  things  have  been  revealed 
by  God;  that  the  only-begotten  Son  of  God  was  made  flesh, 
to  bear  witness  to  the  truth ;  that  a  perfect  society  was  founded 
by  Him— the  Church  namely,  of  which  He  is  the  head,  and 
with  which  He  has  promised  to  abide  till  the  end  of  the  world. 
To  this  society  He  entrusted  all  the  truths  which  he  had  taught, 
in  order  that  it  might  keep  and  guard  them  and  with  lawful 
authority  explain  them;  and  at  the  same  time  He  commanded 
all  nations  to  hear  the  voice  of  the  Church,  as  if  it  were  His  own, 
threatening  those  who  would  not  hear  it  with  everlasting  perdi- 
tion. Thus  it  is  manifest  that  man's  best  and  surest  teacher  is 
God,  the  source  and  principle  of  all  truth;  and  the  only- 
begotten  Son,  who  is  in  the  bosom  of  the  Father,  the  Way,  the 
Truth,  and  the  Life,  the  true  Light  which  enlightens  every 
man  and  to  whose  teaching  all  must  submit:  And  they  shall 
all  be  taught  of  God.*  In  faith  and  in  teaching  of  morality, 
God  Himself  made  the  Church  a  partaker  of  His  divine  authority, 
and  through  His  heavenly  gift  she  cannot  be  deceived.  She 
is  therefore  the  greatest  and  most  reliable  teacher  of  mankind, 
and  in  her  dwells  an  inviolable  right  to  teach  them.     Sustained 

*  John  vi,  45. 


242  STATE   AND   CHURCH 

by  the  truth  received  from  her  divine  Founder,  the  Church  has 
ever  sought  to  fulfil  holily  the  mission  entrusted  to  her  by  God ; 
unconquered  by  the  difficulties  on  all  sides  surrounding  her,  she 
has  never  ceased  to  assert  her  liberty  of  teaching,  and  in  this 
way  the  wretched  superstition  of  Paganism  being  dispelled,  the 
wide  world  was  renewed  unto  Christian  wisdom.     Now,  reason 
itself  clearly  teaches  that  the  truths  of  divine  revelation  and 
those  of  nature  cannot  really  be  opposed  to  one  another,  and 
that   whatever   is   at  variance  with  them   must  necessarily  be 
false.     Therefore  the  divine  teaching  of  the  Church,  so  far  from 
being  an  obstacle  to  the  pursuit  of  learning  and  the  progress 
of  science,  or  in  any  way  retarding  the  advance  of  civilization, 
in  reality  brings  to  them  the  sure  guidance  of  shining  light. 
And  for  the  same  reason  it  is  of  no  small  advantage  for  the 
perfecting  of  human   liberty,   since  our  Saviour  Jesus  Christ 
has  said  that  by  truth  is  man  made  free:     You  shall  know  the 
truth,  and  the  truth  shall  make  you  free:'     Therefore  there  is 
no  reason  why  genuine  liberty  should  grow  indignant,  or  true 
science  feel  aggrieved,  at  having  to  bear  the  just  and  necessary 
restraint  of  laws  by  which,  in  the  judgment  of  the  Church  and 
of  Reason  itself,  human   teaching  has  to  be  controlled.     The 
Church,  indeed — as  facts  have  everywhere  proved — looks  chiefly 
and  above  all  to  the  defence  of  the  Christian  faith,  while  care- 
ful at  the  same  time  to  foster  and  promote  every  kind  of  human 
learning.     For  learning  is  in  itself  good,  and  praiseworthy,  and 
desirable;  and  further,  all  erudition  which  is  the  outgrowth  of 
sound  reason,  and  in  conformity  with  the  truth  of  things,  serves 
not  a  little  to  confirm  what  we  believe  on  the  authority  of  God. 
The  Church,  truly,  to  our  great  benefit,  has  carefully  preserved 
the   monuments    of    ancient    wisdom.;    has   opened    everywhere 
homes  of  science,   and  has  urged  on   intellectual   progres's  by 
fostering  most  diligently  the  arts  by  which  the  culture  of  our 
age  is  so  much  advanced.     Lastly,  we  must  not  forget  that  a 
vast  field  lies  freely  open  to  man's  industry  and  genius,  con- 
taining all   those   things  which  have  no   necessary  connection 
with  Christian  faith  and  morals,  or  as  to  which  the  Church, 
exercising  no  authority,  leaves  the  judgment  of  the  learned  free 
"  John  viii,  32. 


LAW  AND  LIBERTY  243 

and  unconstrained.  From  all  this  may  be  understood  the  nature 
and  character  of  that  liberty  which  the  followers  of  Liberalism 
so  eagerly  advocate  and  proclaim.  On  the  one  hand,  they 
demand  for  themselves  and  for  the  State  a  license  which  opens 
the  way  to  every  perversity  of  opinion ;  and  on  the  other,  they 
hamper  the  Church  in  divers  ways,  restricting  her  liberty  within 
narrowest  limits,  although  from  her  teaching  not  only  is  there 
nothing  to  be  feared,  but  in  every  respect  very  much  to  be 
gained. 

Another  liberty  is  widely  advocated,  namely,  liberty  of  con- 
science. If  by  this  is  meant  that  every  one  may,  as  he  chooses, 
worship  God  or  not,  it  is  sufficiently  refuted  by  the  arguments 
already  adduced.  But  it  may  also  be  taken  to  mean  that  every 
man  in  the  State  may  follow  the  will  of  God  and,  from  a  con- 
sciousness of  duty  and  free  from  every  obstacle,  obey  His  com- 
mands. This,  indeed,  is  true  liberty,  a  liberty  worthy  of  the 
sons  of  God,  which  nobly  maintains  the  dignity  of  man,  and 
is  stronger  than  all  violence  or  wrong — a  liberty  which  the 
Church  has  always  desired  and  held  most  dear.  This  is  the  kind 
of  liberty  the  apostles  claimed  for  themselves  with  intrepid 
constancy,  which  the  apologists  of  Christianity  confirmed  by 
their  writings,  and  which  the  martyrs  in  vast  numbers  con- 
secrated by  their  blood.  And  deservedly  so ;  for  this  Christian 
liberty  bears  witness  to  the  absolute  and  most  just  dominion  of 
God  over  man,  and  to  the  chief  and  supreme  duty  of  man 
towards  God.  It  has  nothing  in  common  with  a  seditious  and 
rebellious  mind;  and  in  no  tittle  derogates  from  obedience  to 
public  authority ;  for  the  right  to  command  and  to  require  obedi- 
ence exists  only  so  far  as  it  is  in  accordance  with  the  authority  of 
God,  and  is  within  the  measure  that  He  has  laid  down.  But 
when  anything  is  commanded  which  is  plainly  at  variance  with 
the  will  of  God,  there  is  a  wide  departure  from  this  divinely 
constituted  order,  and  at  the  same  time  a  direct  conflict  with 
divine  authority;  therefore  it  is  right  not  to  obey. 


12.     THE  MORAL  OBLIGATION  OF  CIVIL  LAW 
By  Rev.  John  A.  Ryan,  D.D. 

The  State  performs  its  functions  by  means  of  law.  Through 
the  direct  or  indirect  authorization  of  law,  taxes  are  collected, 
public  money  m  expended,  public  services,  such  as,  the  post 
office,  the  public  schools,  the  department  of  justice,  the  fire 
department,  the  police  department,  are  administered,  and  the 
various  regulatory  measures  affecting  individuals  and  associa- 
tions are  ordained  and  enforced.  It  is  law  that  warrants  and 
supports  every  civil  act  performed  by  any  official  in  any  of  the 
three  great  departments  of  government,  the  executive,  the  legis- 
lative and  the  judiciary.  When  a  public  official  proceeds  without 
the  authorization  of  law  or  exceeds  the  scope  of  the  law,  his 
action  has  no  civil  validity. 

The  authority  of  the  State  to  make  laws  is  derived  from  God.^ 
He  has  endowed  men  with  such  qualities  and  needs  that  they  can- 
not live  reasonable  lives  without  the  State.  Therefore,  He 
wishes  the  State  to  exist  and  to  function  in  such  a  way  as  to 
attain  this  end,  to  promote  man's  temporal  welfare.  It  does 
so  by  means  of  law.  Hence  civil  law  is  genuine  moral  law,  not 
merely  a  kind  of  legal  or  physical  coercion.  It  binds  in  con- 
science. Herein  it  differs  from  the  rules  of  a  social  club. 
The  latter  do  not  produce  moral  obligation.  Even  though  they 
should  be  disregarded  to  such  an  extent  as  to  destroy  the  club, 
its  members  would  suffer  no  vital  injury.  On  the  other  hand, 
men  are  deprived  of  a  necessary  means  to  human  life  and  devel- 
opment when  there  is  general  disobedience  of  the  laws  of  the 
State.     The  moral  law  which  binds  men  to  live  reasonable  lives, 

'Cf.  Pope  Leo  XIII,  The  Christkin  Constitution  of  States,  p.  2.  of 
this  volume. 

244 


MORAL  OBLIGATION  OF  CIVIL  LAW  245 

obliges  them  to  adopt  one  of  the  essential  means  to  this  end, 
that  is,  to  maintain  the  State  and  to  obey  its  laws. 

Such  is  the  rational  basis  of  the  doctrine  laid  down  in  Holy 
Scripture,  and  taught  without  variation  by  the  Catholic  Church. 
According  to  this  doctrine,  the  civil  law  binds  in  conscience, 
as  such ;  not  because  it  includes,  nor  only  in  so  far  as  it  includes, 
natural,  or  supernatural,  or  essles'iastical  law." 

No  declaration  of  any  Church  authority  can  be  cited  in  favor 
of  the  contrarj^  opinion.  A  few  individual  writers  have  held 
it,  but  the  overwhelming  majority  of  theologians  teach  that  the 
civil  law  is  morally  binding  on  its  own  account,  because  of  the 
moral  authoritj'^  possessed  by  the  State.^ 

Of  course,  all  ethically  valid  civil  laws  must  be  in  harmony 
with  the  moral  law  of  nature.  A  statute  which  is  contrary  to  a 
precept  of  the  natural  law,  has  no  moral  force,  however  solemnly 
it  may  have  been  enacted,  or  formidably  sanctioned,  or  vigor- 
ously enforced.  Such  an  enactment  is  not  law  at  all,  but,  as 
St.  Thomas  calls  it,  "a  species  of  violence." 

CIVIL  LAW   BASED   ON    NATURAL   LAW 

Indeed,  all  civil  law  may  properly  be  regarded  as  either  a 
reaffirmation  of  the  natural  law,  or  as  an  application  of  its 
precepts,  principles  or  derived  conclusions.*  Of  the  former 
kind  are  the  statutes  forbidding  theft,  assault,  and  adultery. 
To  the  latter  class  belong  the  laws  which  determine  individual 
property  rights  and  prescribe  the  imposition  and  collection  of 
taxes,  and  ordinances  for  the  regulation  of  traffic  on  streets  and 
roads.  The  natural  law  dictates  that  men  should  acquire  and 
use  external  goods  with  a  just,  regard  to  the  rights  of  their 
fellows,  but  it  does  not  inform  them  just  how  this  requirement 
is  to  be  observed  and  applied  in  particular  cases.     In  virtue  of 

*Cf.  Bouquillon,  TlieoJogia  Moralis  FundamentaJis,  no.  223. 

*  The  greatest  authority  on  law  among  Catholic  theologians,  Francisco 
Suarez,  S.J.,  declares  that  this  is  the  "common  opinion  of  Catholics."  His 
own  defense  of  the  proposition  is  summed  up  in  three  declarations:  The 
civil  legislator  makes  laws  as  the  minister  of  God;  the  legislator  is  required 
by  the  divine  and  natural  law  to  pass  laws;  this  power  and  its  exercise  are 
necessary  for  the  common  good.    De  Legibus,  lib.  Ill,  cap.  21. 

*Cf.  Cronin,  The  Science  of  Ethics,  II,  599,  600. 


246  STATE  AND   CHURCH 

the  natural  law,  men  are  obliged  to  maintain  the  government, 
hut  there  is  no  specific  precept  requiring  this  end  to  be  attained 
through  a  certain  form  of  taxation.  We  are  enjoined  by  the 
natural  law  to  refrain  from  inflicting  physical  injury  upon  the 
neighbor  in  our  common  use  of  the  public  streets,  as  well  as 
in  other  relations,  but  we  are  not  told  whether  the  speed  limit 
should  be  ten  miles  an  hour  or  twenty.  In  all  snich  cases,  the 
general  provisions  and  precepts  of  the  natural  law  stand  in  need 
of  specific  and  precise  determination  by  the  positive  law.  Civil 
statutes  for  this  purpose  derive  their  immediate  moral  authority 
and  validity  from  the  State  itself.  Their  binding  force  cannot 
come  directly  from  the  natural  law,  since  the  latter  is  so 
general  in  its  provisions  that  other  specific  determinations,  for 
example,  other  property  regulations  and  trafiic  regulations, 
might  be  equally  in  harmony  with  these  general  provisions. 
Natural  law  cannot  oblige  men  to  comply  with  its  general  pro- 
visions in  a  particular  way,  when  another  way  would  be  equally 
efficacious.  The  function  of  prescribing  one  method  rather 
than  another  belongs  to  the  State.  Its  right  to  make  such  a 
prescription  flows  from  the  fact  that  it  is  the  authorized  and  the 
only  competent  agency  to  determine  and  enforce  necessary  and 
uniform  methods  of  carrying  into  effect  the  general  principles 
of  the  natural  law  in  all  such  matters.  The  obligation  of  the 
citizens  to  observe  these  methods  and  regulations  is  based  ulti- 
mately on  the  natural  law,  but  its  immediate  and  formal  basis 
is  the  State.^ 

The  objection  might  be  raised  that  all  the  foregoing  instances 
and  the  reasoning  that  they  are  intended  to  illustrate,  refer  only 
to  civil  ordinances  which  are  necessary.  The  moral  obligation 
to  obey  such  statutes  is  as  clear  as  the  obligation  to  maintain 

"It  is  in  this  sense  that  St.  Thomas  speaks  of  civil  law  as  a  "participa- 
tion in  the  eternal  and  natural  law."  Suarez  draws  the  distinction  clearly 
between  a  civil  law  conceived  as  obligatory  because  and  when  it  contains  or 
applies  a  specific  precept  of  the  natural  law,  or  a  necessary  conclusion 
therefrom,  and  a  civil  law,  or  the  whole  body  of  civil  law,  conceived  as 
obligatory  because  it  is  based  on  the  general  principle  of  the  natural  law 
which  requires  ordinances  to  be  obeyed.  He  declares  that  if  those  who 
deny  that  the  civil  law  binds  in  conscience  hold  to  the  latter  instead  of  thfi 
former  conception,  the  dispute  is  perhaps  merely  one  of  language.  They 
agree  with  him  in  principle.    Idem,  loc.  cit. 


MORAL  OBLIGATION  OF  CIVIL  LAW  247 

an  effective  political  organization.  In  both  cases  we  can  trace 
the  compelling  and  obligatory  influence  of  the  natural  law.  Its 
precepts  require  men  to  deal  justly  and  charitably  with  one 
another,  and  to  make  and  obey  whatever  civil  regulations  are 
necessary  to  attain  this  end.  But  the  case  seems  to  be  different 
with  those  civil  statutes  which  prescribe  and  administer  things 
that  are  merely  useful.  Government  regulation  of  street  traffic 
is  necessary,  but  government  ownership  of  railroads  is  not  nec- 
essary. Whence  comes  the  moral  obligation  upon  the  citizens 
to  obey  the  law  which  forbids  them  to  own  a  railroad  ? 

The  answer  is  that  the  obligation  is  derived  ultimately  from 
the  natural  law,  precisely  as  in  the  case  of  the  traffic  ordinance. 
Just  as  the  State  has  the  authority  to  prescribe  one  maximum 
rate  of  speed  rather  than  another,  so  it  has  the  right  to  determine 
that  goods  and  passengers  shall  be  carried  by  the  government 
rather  than  by  private  corporations.  In  both  cases  the  end  is 
the  common  welfare.  In  both  cases  the  State  must  adopt  some 
means  to  attain  this  end.  In  each  case  more  than  one  means 
would  be  adequate.  Some  speed  limit  must  be  prescribed,  but 
it  need  not  be  fifteen  miles  per  hour  rather  than  twenty.  As 
compared  with  the  latter,  the  former  is  merely  useful,  and  vice 
versa.  The  case  of  the  railroads  is  exactly  parallel.  They  are 
necessary  for  the  common  welfare.  They  can  attain  this  end 
substantially  under  either  private  or  public  ownership.  The 
issue  between  the  two  methods  is  merely  one  of  utility,  and  the 
State  is  not  clearly  obliged  to  choose  one  rather  than  the  other. 
But  it  must  authorize  some  one  of  the  two.  When  it  adopts 
government  ownership,  its  action  is  morally  binding  on  the  citi- 
zens for  the  same  reason  that  makes  its  tratfic  regulations 
morally  binding.  That  is,  it  is  determining  a  method  of  pro- 
moting the  common  good,  in  virtue  of  its  authority  as  the  only 
competent  determinant  of  such  matters.  The  obligation  of  the 
citizens  to  accept  the  determination  aetuall}'  made,  i.  e.,  govern- 
ment ownership,  comes  immediately  from  the  authority  of  the 
State,  but  ultimately  from  that  principle  of  the  natural  law 
which  dictates  that  men  should  support  all  the  legitimate  activities 
of  the  State. 

Individual  citizens  may  think,  and  their  opinion  may  be  cor- 


248  STATE   AND   CHURCH 

rect,  that  government  ownership  of  railroads  is  less  useful,  less 
conductive  to  the  common  good,  than  private  ownership.  Never- 
theles-s,  they  are  morally  obliged  to  accept  the  former  for  the 
sake  of  that  same  common  good.  Their  refusal  to  do  so  would 
cause  greater  injury  to  the  community  than  the  continuation 
of  and  their  acquiescence  in  the  duly  established  arrangement. 
It  would  imply  that  a  group  of  individuals  may  at  any  time 
reject  any  civil  ordinance  with  which  they  do  not  agree.  The 
contradiction  is  obvious  between  this  position  and  the  require- 
ments of  right  reason,  of  the  natural  law,  of  the  common  good, 
and  of  individual  welfare. 

The  sum  of  the  matter  is  that  every  law  enacted  by  a 
legitimate  government,  and  not  contrary  to  any  provision  of  the 
natural  law,  whether  its  prescriptions  are  evidently  necessary 
or  merely  useful,  is  in  some  degree  morally  binding  on  the 
citizens.  The  fundamental  reason  is  the  necessity,  according  to 
the  divine  plan,  of  an  effectively  functioning  State  for  human 
welfare. 

It  has  just  been  said  that  every  genuine  civil  enactment  la 
morally  binding  "in  some  degree."  This  phrase  brings  up  for 
consideration  certain  modifications,  or  qualifications,  of  the 
general  principle.  It  suggests  these  questions:  Do  civil  laws 
bind  under  pain  of  mortal  sin  ?  Does  their  obligatory  character 
depend  upon  the  will  of  the  legislator?  Are  some  civil  statutes 
"purely  penal"?  Does  the  validity  of  civil  laws  depend  upon 
their  acceptance  by  the  people? 

CIVIL   LAW^S   OF   GRAVE   OBLIGATION 

To  the  first  of  these  questions  the  answer  of  the  great  majority 
of  Catholic  writers  is  in  the  affirmative.  The  reason  is  tersely 
stated  by  Suarez:  Inasmuch  as  civil  law  binds  in  conscience, 
it  necessarily  produces  a  degree  of  obligation  proportionate  to 
its  subject  matter;  if  the  latter  is  of  grave  importance,  the 
obligation  of  obeying  the  law  will  likewise  be  grave."  Generally 
speaking,  the  person  who  violates  a  civil  statute  which  prescribes 
some  action  of  great  importance  for  the  commonwealth,  is  guilty 

"  Op.  cit.,  lib.  3,  cap.  24,  no.  2. 


MORAL  OBLIGATION  OF  CIVIL  LAW  249 

of  mortal  sin.  This  proposition  can  be  logically  rejected  only 
on  the  assumption  that  no  civil  law  can  be  of  great  importance. 

Such  is  the  obligatory  force  of  a  momentous  law,  considered 
in  itself.  But  we  are  confronted  with  tlie  second  question  raised 
above.  Does  the  obligation  depend  upon  the  will  of  the  legis- 
lator? It  is  the  unanimous,  or  practically  unanimous,  teach- 
ing of  Catholic  authorities  that  the  intention  of  creating  a 
moral  obligation  is  of  the  essence  of  law,  so  that,  a  prescription 
by  legislators  who  positively  and  explicitly  intended  that  it 
should  not  bind  in  conscience,  would  not  be  a  true  law.  It 
would  be  merely  a  direction,  a  counsel,  or  an  expression  of 
legislative  preference.  If  the  existence  of  moral  obligation  de- 
pends upon  the  will  of  the  legislator,  the  same  dependence  must 
logically  be  predicated  of  the  degree  of  obligation.  Hence,  the 
general  opinion  among  Catholic  moral  theologians  is  that  the 
legislator  has  the  authority  to  render  grave  laws  only  slightly 
obligatory.^  That  is,  a  law  which  of  itself  would  bind  under 
pain  of  mortal  sin,  brings  upon  the  transgressor  merely  venial 
guilt  when  this  is  the  desire  and  intention  of  the  legislator. 

In  order  that  a  civil  law  should  become  obligatory  to  a  grave 
degree  two  conditions  are,  therefore,  necessary:  First,  that  the 
subject  matter  be  of  great  importance ;  second,  that  the  legislator 
should  intend  the  law  to  have  this  effect  in  the  forum  of  con- 
science. Either  of  these  conditions  lacking,  the  law  binds  only 
under  pain  of  venial  sin.  If  the  subject  matter  is  of  slight 
importance  the  legislator  cannot  perform  the  inherently  con- 
tradictory feat  of  making  the  obligation  grave;  if  the  legislator 
does  not  wish  a  gravely  important  law  to  bind  under  pain  of 
mortal  sin  it  will  not  be  obligatory  in  this  degree. 

THE  INTENTION  OP  THE  LEGISLATOR 

A  very  important  question  arises  here  concerning  the  form 
which  the  legislator's  intention  must  take  in  order  to  make  an 
o'bligation  slight  which  from  the  nature  of  the  subject  matter 
would  be  grave.  Suppose  he  does  not  think  about  moral  obliga- 
tion at  all,  but  merely  has  in  mind  the  enactment  of  a  law.  In  that 

'  Cf .  Suarez,  op.  cit.,  lib.  3,  cap.  27. 


250  STATE   AND   CHURCH 

ease  the  law  will  bind  in  conscience,  and  the  degree  of  the  obli- 
gation will  be  determined  by  the  importance  of  the  subject 
matter.  This  is  the  normal  effect  of  a  true  law,  and  it  is  always 
produced,  so  long  as  it  is  not  positively  excluded  by  the  inten- 
tion of  the  legislator.  Suppose  that  the  legislator  explicitly 
desires  that  the  law  should  be  obligatory,  but  does  not  think 
about  the  degree  of  obligation.  A«  in  the  former  ease,  the  obli- 
gation will  be  determined  by  the  subject  matter.  If  the  latter 
is  gravely  important  the  law  will  be  gravely  obligatory.  There- 
fore, a  civil  law  of  great  importance  always  binds  under  pain 
of  mortal  sin,  unless  the  legislator  forms  a  positive  intention  to 
the  contrary.  A  merely  negative  attitude  toward  the  obligation 
will  have  no  effect  upon  the  obligation.^ 

The  opponents  of  the  doctrine  that  the  legislator  can  render 
slight  the  obligation  of  a  grave  law,  contend  that  the  degree  of 
binding  force  carried  by  a  civil  law  depends  exclusively  upon 
the  subject  matter.  The  legislator's  power  is  merely  that  of 
making  or  not  making  the  statute."  This  argument  would  lead 
logically  to  the  conclusion  that  the  existence  of  any  obligation 
at  all  is  entirely  independent  of  the  will  of  the  legislator. 
Should  the  member.y  of  a  legislative  body  explicitly  will  that 
their  enactments  should  not  be  binding  in  conscience  this  reserva- 
tion would  be  without  effect.  Suarez  declares  that  such  an 
enactment  is  not  a  true  law;  but  this  seems  to  be  mostly  a 
question  of  language. 

Consider  an  ordinance  which  is  clearly  necessary  for  the 
common  good,  as,  that  which  regulates  the  speed  of  vehicles. 
Does  not  the  very  necessity  of  this  measure  make  it  binding  in 
conscience?  It  is  true  that  a  different  law  might  be  equally 
adapted  to  meet  this  necessity;  and  the  inference  might  be  drawn 
that  the  citizen  who  observed  the  provisions  of  this  alternative 
and  hypothetical  rule  would  be  under  no  obligation  to  obey  the 
existing  law.  The  reply  is  that  the  common  good  requires  the 
enactment  and  the  observance  of  one  ordinance.  Human  welfare 
is  not  safeguarded  through  a  kind  of  private  interpretation  by 
the  citizens  themselves  of  what  constitutes  a  reas'onable  rule  or 

'  Cf .  Suarez,  loc.  cit. 
•Cf.  Suarez,  ibidem. 


MORAL  OBLIGATION  OF  CIVIL  LAW  251 

standard.  Now  it  is  the  proper  and  necessary  function  of  the 
legislators  to  enact  this  uniform  regulation.  Once  it  has  been 
chosen  out  of  several  possible  ordinances,  it  becomes  morally 
binding  because  of  its  necessity  for  the  common  good,  no  matter 
what  the  legislators  may  think  of  obligation.  It  is  re-asonable 
and  necessary  that  they  determine  the  provisions  of  the  law, 
but  it  is  neither  reasonable  nor  necessary  that  they  have  power 
to  determine  the  question  of  its  moral  obligation. 

Even  laws  which  are  not  necessary  for  the  common  welfare 
may  conceivably  be  obligatory  against  the  desires  of  the  legis- 
lators. For  the  common  good  may  require  that  a  law  of  this 
sort,  even  though  no  more  useful  than  the  alternative  arrange- 
ment, be  obeyed  for  the  sake  of  social  order.  Violations  of  it 
might  be  detrimental  to  the  public  good  merely  because  they  were 
violations  of  duly  enacted  law.  In  such  a  situation,  why  should 
the  unwillingness  of  the  legislator  to  impose  moral  obligation 
have  any  moral  effect  or  significance  ? 

Whatever  may  be  thought  of  the  foregoing  argument,  the 
question  whether  the  legislator  has  power  to  render  a  grave  law 
only  slightly  obligatory,  has  no  practical  importance  in  modern 
communities.  No  legislative  body  ever  thinks  of  exercising  such 
power.  Therefore,  modern  civil  laws  dealing  with  gravely  im- 
portant matters  always  produce  their  normal  effect  of  binding 
under  pain  of  mortal  sin." 

The  doctrine  that  the  moral  obligation  of  civil  law  depends  to 
some  extent  upon  the  intention  of  the  legislator,  is  sometimes 
made  the  basis  of  an  extraordinary  view  of  modern  civil  legis- 
lation. It  is  nothing  less  than  the  conclusion  that  the  ordinances 
of  practically  all  modem  legislative  bodies  have  no  binding 
force  in  conscience.  Laws  do  not  bind  in  conscience  unless  the 
legislator  intends  them  so  to  bind ;  now  contemporary  lawmakers 
cannot  have  such  an  intention  since  they  do  not  believe  in  the 
existence  of  genuine  moral  obligation.  Such  is  the  argument. 
Tanquerey  rejects  it  on  the  ground  that  whatever  may  be  their 
general  and  theoretical  attitude  toward  the  reality  of  moral 
obligation,  modem  legislators  do  desire  their  enactments  to 
have  the  utmost  possible  force  and  authority;  hence  they  ini- 

"  Cf .  Meyer,  Institutiones  Juris  Naturalis,  II,  p.  569. 


252  STATE  AND   CHURCH 

plicitly  intend  them  to  be  morally  binding.^^  Bouquillon  takes 
a  similar  position,  declaring  that  the  legislator  need  not  expressly 
intend  to  impose  an  obligation  in  conscience,  that  it  is  sufficient 
for  him  to  have  the  intention  of  issuing  a  genuine  command." 
Lehmkuhl  holds  the  same  view  as  Tanquerey  and  Bouquillon, 
and  points  out  that  if  explicit  intention  to  bind  the  conscience 
were  indispensable,  the  laws  enacted  by  Pagan  rulers  would 
be  without  obligatory  force,  which  is  surely  contrary  to  the  teach- 
ing of  Holy  Scripture/^  Suarez  declares  that  the  design  of  the 
legislator  to  make  a  true  law  suffices,  and  that  the  formal  in- 
tention to  bind  in  conscience  is  not  necessary.  He  notes  that 
legislators,  particularly  unbelievers,  rarely  advert  to  the  ques- 
tion of  moral  obligation.^*  Indeed,  it  seems  to  be  the  general 
opinion  of  the  moral  theologians  that  an  implicit  intention  suf- 
fices; that  is,  the  intention  that  the  enactment  should  have  all 
the  moral  authority  which  attaches  to  a  genuine  law. 

This  conclusion  seems  to  be  entirely  consistent  with  the  "neces- 
sity of  intention"  doctrine,  as  regards  two  classes  of  lawmakers 
who  have  no  explicit  desire  to  bind  in  conscience ;  namely,  those 
who  believe  that  civil  law  is  morally  obligatory  but  do  not 
advert  to  this  fact  at  the  moment  of  legislating,  and  those  who 
theoretically  disbelieve  in  genuine  moral  obligation,  but  who 
are  willing  that  if  perchance  it  does  exist  it  should  attach  to 
their  ordinances.  In  the  minds  of  both  these  classes,  there  is 
inherent  a  true  implicit  intention  to  make  the  law  binding  in 
conscience. 

As  regards  those  lawmakers  who  are  firmly  persuaded  that 
civil  laws  are  not  obligatory  in  the  proper  sense,  for  example, 
those  who,  with  the  English  jurist,  John  Austin,  reduce  the 
moral  obligation  of  legal  statutes  to  the  evil  chance  of  incurring 
the  penalty  for  violation, — it  is  not  clear  that  there  exists  even 
an  implicit  intention  to  produce  moral  obligation.^^  Tanquerey 
contends  for  the  reality  of  such  an  intention  on  the  ground  that 
the  legislator  desires  his  laws  to  exercise  all  possible  compelling 

"  Theologia  Moralis  Fundamentalis,  no.  343. 

"  Theologia  Moralis  Fundamentalis,  no.  223. 

"  Theologia  Moralis,  I,  no.  211. 

"  Op.  cit.,  lib.  3,  cap.  27,  no.  7. 

"  Cf .  Slater,  Questions  of  Moral  Theology,  pp.  279-288. 


MORAL  OBLIGATION  OF  CIVIL  LAW  253 

force  upon  the  will  of  the  citizens,  and  therefore  is  quite  willing 
that  the  latter  should  feel  bound  in  conscience.  Nevertheless, 
this  is  not  an  implicit  intention  to  impose  objective  moral  obliga- 
tion. It  does  not  recognize  the  objective  bond  which  is  the 
essence  of  genuine  obligation,  the  bond  between  the  will  of  the 
law  giver  and  the  will  of  the  law  receiver.  The  only  thing 
covered  by  such  an  intention  is  the  state  of  mind  of  the  citizen. 
That  this  should  be  affected  by  a  persuasion  of  obligation,  the 
lawmaker  is  perfectly  willing;  that  the  objective  moral  bond 
constituting  obligation  should  extend  from  his  will  to  the  will 
of  the  citizen,  the  lawmaker  has  not  even  an  implicit  intention, 
for  he  totally  rejects  the  possibility  of  such  a  bond.  His  inten- 
tion comprises  only  a  subjective  condition,  not  an  objective 
relation.  It  is  hard  to  see  how  such  legislators  can  have  even 
an  implicit  intention,  either  to  make  a  true  law,  or  to  impose 
moral  obligation. 

As  a  matter  of  fact,  it  is  very  doubtful  that  many  contempor- 
ary legislators  deny  to  civil  laws  the  possibility  of  moral  obliga- 
tion in  the  absolute  and  comprehensive  manner  supposed  in  the 
preceding  paragraph.  Probably  the  great  majority  of  them 
accept,  at  leas't  in  some  vague  way,  the  existence,  or  at  any  rate, 
the  possibility  of  a  juristic  moral  bond  between  law  giver  and 
law  receiver.  This  is  a  sufficient  basis  for  an  implicit  intention 
to  bind  in  conscience.  Therefore,  the  general  opinion  of  moral 
theologians  that  modern  civil  laws  bind  in  conscience,  is  con- 
sistent with  their  teaching  that  this  moral  force  is  in  some  degree 
dependent  upon  the  will  of  the  legislator.  To  be  sure,  the  case 
for  the  moral  obligation  of  contemporary  laws  becomes  clearer 
and  simpler  if  we  accept  the  theory  that  their  obligatory  char- 
acter is  independent  of  the  legislator's  will  and  is  inherent  in 
the  laws  themselves. 


PURELY  PENAL  LAWS 

The  third  question  raised  above  concerns  those  laws  which 
jurists  and  theologians  call  "purely  penal,"  or  "merely  penal," 
or  "disjunctive."  They  are  defined  as  laws  which  oblige  the 
citizen  either  to  obey  them  or  to  accept  the  penalty  appointed 


254  STATE  AND   CHURCH 

for  their  violation.  The  obligation  is  not  absolute,  but  condi- 
tional. If  the  citizen  is  ready  to  submit  to  the  penalty  he  can 
licitly  disobey  the  provisions  of  the  law.  Generally  speaking, 
however,  he  is  not  bound  in  conscience  to  undergo  the  penalty 
until  it  has  been  formally  imposed  by  the  court.  He  is  not 
obliged  to  give  himself  up,  nor  to  forego  Ills'  civil  right  of  legal 
defence. 

The  great  majority  of  moral  theologians  hold  that  the  legis- 
lator has  authority  to  enact  laws  of  this  sort.  In  the  first  place, 
it  is  contended  that  the  object  of  the  law  and  the  common  good 
may  sometimes  be  more  effectively  promoted  by  a  statute  which 
leaves  the  citizen  free  to  disobey  the  law  and  become  morall}' 
liable  to  the  penalty,  than  by  one  which  gives  no  such  choice 
but  entails  moral  guilt  every  time  it  is  violated.  Such  are  laws 
which  men  transgressi  with  uncommon  frequency,  but  whose 
object  can  be  adequately  attained  through  the  infliction  of  penal- 
ties upon  their  violators.  A  purely  penal  law  is  in  some  sense 
a  concession  to  human  weakness.  The  second  reason  given  by 
the  theologians  to  support  the  proposition  under  consideration 
ia  the  legislator's  power  over  the  obligatory  character  of  his 
enactments.  Just  as  he  can  determine  that  a  gravely  important 
law  shall  bind  only  under  pain  of  venial  sin,  so  he  can  make 
the  obligation  of  certain  laws  disjunctive.  That  is,  he  may 
attach  the  obligation  either  to  the  observance  of  the  law  or  to 
the  acceptance  of  the  penalty,  so  that  the  citizen  has  the  option 
of  being  bound  to  the  latter  instead  of  the  former. 

It  is  to  be  observed  that  a  purely  penal  law  must  carry  some 
obligation.  The  legislator  cannot  enact  a  statute  which  would 
bind  the  citizen  neither  to  obey  its  provisions  nor  to  accept  its 
penalties."  Such  an  enactment  would  not  be  a  true  law,  inas- 
much as  it  would  lack  an  essential  element,  namely,  moral  bind- 
ing force.  Hence  the  legislator  must  have  at  least  the  implicit 
intention  of  morally  obliging  the  citizen  to  accept  the  penalty  in 
ease  of  violation. 

It  seems,  however,  that  the  practical  obligation  of  a  purely 
penal  law  is  attenuated  almost  to  the  vanishing  point.  If  the 
violator  of  the  law  is  not  obliged  to  make  known  his  transgres- 

"  Cf .  Suarez,  op.  cit.,  lib.  3,  cap.  27,  no.  3. 


MORAL  OBLIGATION  OF  CIVIL  LAW  255 

sion,  nor  to  waive  his  legal  right  of  defence,  hi«  duty  of 
"accepting  the  penalty"  is  merely  that  of  submitting  to  the 
sentence  of  the  court.  That  is,  he  must  not  break  jail  nor  evade 
payment  of  a  fine.  When  the  offender  evades  apprehension, 
he  escapes  all  moral  obligation;  when  he  successfully  contests 
prosecution,  he  likewise  remains  free  from  moral  accountability ; 
when  he  is  convicted,  his  moral  obligation  is  merely  that  of 
omitting  actions  from  which  in  most  cases  he  is  physically  re- 
strained by  the  sheriff  or  the  policeman.  In  a  word,  the  moral 
obligation  of  a  purely  penal  law  is  next  to  nothing,  its  moral 
sanction,  i.  e.,  the  eflCectiveness  of  the  moral  element  in  prevent- 
ing violations,  is  practically  nothing. 

These  facts  create  a  strong  presumption  that  the  field  of  purely 
penal  law  is  extremely  limited.  The  objective  reason  why  civil 
law  carries  moral  obligation  is  found  ultimately  in  human  wel- 
fare. If  the  law  be  deprived,  or  all  but  deprived,  of  its  moral 
element  its  efficacy  for  the  promotion  of  human  welfare  is 
greatly,  even  fatally,  weakened.  Nevertheless,  the  assertion  is 
sometimes  made  that  in  our  day  all  civil  laws  are  merely  penal. 

Some  who  use  this  language,  do  not  mean  what  they  seem  to 
mean.  They  wish  to  assert  the  theory,  sufficiently  discussed 
above,  that  modern  laws  do  not  bind  in  conscience,  inasmuch  as 
modern  legislators  have  not  the  proper  intention.  If  this  con- 
tention were  sound  civil  legislation  w^ould  not  even  rise  to  the 
dignity  of  purely  penal  enactments ;  for  the  latter  do  entail  some 
moral  obligation.  Those  who,  using  the  phrase  in  its  proper 
sense,  declare  that  all  modern  civil  legislation  is  purely  penal, 
are  happily  neither  numerous  nor  authoritative.  According  to 
the  common  opinion  of  moral  theologians,  the  presumption  is 
alw^ays  in  favor  of  complete  obligation.^^  Like  all  other  presump- 
tions, this  one  can  be  overcome  only  by  positive  facts  and  argu- 
ments. With  regard  to  any  particular  law,  the  burden  of  proof 
rests  upon  him  who  contends  that  it  is  purely  penal. 

As  commonly  given  hy  theologians,  there  are  three  tests  by 
which  a  civil  law  may  be  adjudged  purely  penal :  First,  the 
declaration  of  the  legislator;  second,  the  attitude  of  popular 
tradition    and   custom;   third,   the   enactment   of   a   penalty  so 

"Cf.  Tanquerey,  op.  cit.,  no.  347. 


256  STATE   AND   CHURCH 

severe  that  it  is  out  of  all  proportion  to  the  law's  importance. 
However,  the  second  and  third  of  these  criteria  are  not  valid 
universally;  for  the  custom  may  be  socially  injurious,  and  the 
heavy  penalty  may  be  designed  to  prevent  unus-ual  frequency 
of  violation,  not  to  indicate  that  the  law  is  to  be  regarded  as 
purely  penal. 

Bouquillon  adds  another  restriction  which  seems  to  be  funda- 
mental. It  is  that  no  law  can  be  reasonably  regarded  as  purely 
penal  unless  the  burden  or  penalty  attached  to  its  violation  is 
specifically  adapted  to  attain  the  end  of  the  law.^^  The  penalty 
must  be  such  as  to  compensate  for  the  failure  of  the  law ;  it 
may  not  be  merely  coercive.  Thus,  heavy  fines  may  offset  the 
loss  to  the  public  treasniry  through  the  non-observance  of  tax 
laws.  In  such  a  case,  the  law  might  fairly  be  interpreted  as 
purely  penal.  But  fines  and  imprisonment  would  not  adequately 
achieve  the  end  of  a  traffic  ordinance,  i.  e.,  safeguarding  life  and 
property.     It  is  not  easy  to  controvert  this  argument. 

POPULAR  ACCEPTANCE 

The  final  question  concerning  the  degree  of  obligation  attach- 
ing to  civil  laws,  is  whether  their  binding  force  depends  upon 
popular  acceptance  or  ratification.  At  first  sight,  an  affirmative 
answer  would  seem  to  contradict  the  general  doctrine  of  the 
foregoing  pages,  namely,  that  civil  legislation  binds  in  conscience. 
However,  there  is  no  necessary  contradiction ;  for  civil  ordi- 
nances might  conceivably  not  attain  the  complete  character  of 
laws  until  they  had  been  ratified  by  the  people.  In  that  sup- 
position, the  people  would  constitute  an  essential  part  of  the 
legislative  authority.  The  obligation  of  individual  citizens  to 
obey  a  statute  would  begin  when  the  latter  had  been  formally 
accepted  by  the  people  as  a  whole.  Only  then  would  "the  will 
of  the  legislator"  have  become  fully  manifest  and  formally 
effective. 

Suarez  informs  us  that  in  his  time  this  was  the  commonly  held 
opinion  of  the  jurists.^^    He  cites  eight  or  ten  important  names, 

'  Op.  cit.,  p.  353. 


"  Op.  cit.,  p.  353. 

"  Op.  cit.,  lib.  3,  cap.  19,  no.  7. 


MORAL  OBLIGATION  OF  CIVIL  LAW  257 

and  admits  that  their  view  seems  to  have  been  anticipated  by 
Aristotle.  Their  ar^ment  was  briefly  as  follows :  In  order  to 
make  binding  laws,  the  legislator  must  have  both  the  authority 
and  the  will.  In  fact,  he  has  neither.  That  he  lacks  moral 
power  to  legislate  validly  without  the  people's  consent,  is  shown 
by  the  fact  that  his  authority  to  govern  and  to  make  any  laws 
at  all  is  derived  from  the  people;  and  they  have  given  him 
legislative  authority  on  condition  that  his  ordinances  shall  be- 
come binding  only  when  accepted  by  the  people.  That  this 
condition  is  attached  to  the  grant  of  authority,  is  evident  from 
the  "most  ancient  usage  of  the  Roman  people,"  and  from  the 
fact  that  popular  acceptation  is  the  best  indication  that  a  law 
really  promotes  the  common  good,  just  as  the  contrary  attitude 
of  the  people  proves  the  law  to  be  socially  harmful  and  thus 
without  validity.  The  will  to  make  binding  laws  without  the 
consent  of  the  people  is  wanting  to  the  legislator  because  he 
cannot  have  a  genuine  intention  of  doing  something  for  which 
he  lacks  authority. 

In  passing  it  is  worthy  of  note  that  these  ultra-democratic 
jurists  all  wrote  before  the  b&ginning  of  the  seventeenth  century. 
This  was  the  period  when  Catholic  teaching  supported  political 
absolutism  and  political  oppression  generally,  according  to  the 
perverted  notions  that  still  pass  in  many  quarters  as  history. 
Major,  one  of  the  writers  cited  by  Suarez,  declared  that  the  com- 
munity is  superior  to  the  prince  in  all  things  that  pertain  to 
sovereignty;  yet  this  doctrine  gives  many  of  us  a  disagreeable 
shock  when  it  falls  upon  our  ears  in  such  a  modernized  version 
as  "the  people  are  the  masters,  the  public  official  is  their 
servant."  It  is  likewise  noteworthy  that  in  support  of  their 
theory  of  popular  acceptance  of  laws,  these  writers  appeal  to  a 
principle  which  no  one  disputed  in  their  day,  namely,  that  rulers 
and  legislators  derive  their  authorit}^  from  the  people.  The 
inference  drawn  from  this  principle  b}'  the  jurists  was  not  ad- 
mitted by  the  moral  theologians,  but  the  principle  itself  was 
universally  received. 

Generally  and  per  se,  popular  acceptance  is  not  neces-sarj'  for 
the  validity  of  a  civil  law.  Such  is  the  unanimous  teaching  of 
the  moral  theologians.     As  stated  by  Suarez,  the  following  are 


258  STATE   AND   CHURCH 

the  main  reasons  which  support  this  principle.^"  In  every  State 
that  is  not  a  pure  demoeracy,  the  people  have  transferred  su- 
preme political  power  to  the  rulers  and  legislators,  and  have  not 
retained  the  right  of  accepting  or  rejecting  legislation. 
Secondly,  the  authority  to  legislate  would  be  plainly  futile  if 
the  people  were  morally  free  to  obey  or  not  to  obey.  Thirdly, 
usage  shows  that  laws  are  held  to  be  binding  as  soon  as  they 
have  been  regularly  enacted  and  promulgated.  In  short,  civil 
laws  are  obligatory  without  popular  ratification,  on  account  of 
the  original  grant  of  power  to  the  rulers,  on  account  of  universal 
custom,  and  because  this  is  necessary  for  the  common  good.  It  is 
not  possible  to  overthrow  this  argument. 

The  general  principle  is  subject,  however,  to  certain  qualifi- 
cations and  exceptions.  Suarez  notes  that  popular  acceptance 
of  the  law  is  essential  to  its  binding  force  when  the  people  have 
attached  that  condition  to  the  grant  of  legislative  power.  In 
the  kingdom  of  Aragonia  (a  part  of  Medieval  and  benighted 
Spain,  be  it  noted!)  he  says,  the  laws  of  the  monarch  do  not 
become  binding  until  they  are  ratified  in  public  assemblies. 
On  the  same  principle,  certain  enactments  of  legislative  bodies 
in  Switzerland,  the  United  States,  and  New  Zealand  obtain  the 
full  force  of  law  only  when  they  have  been  approved  by  a  popu- 
lar referendum.  Even  in  these  States,  the  great  majority  of  laws 
are  recognized  as  valid  as  soon  as  they  have  been  promulgated 
by  the  supreme  legislative  authority. 

In  the  second  place,  Suarez  points  out  that  when  a  law  is  very 
frequently  disregarded  by  the  greater  part  of  the  people,  the 
legislator  may,  through  tacit  consent,  permit  the  law  to  be  de- 
prived of  binding  force.  However,  this  is  not  an  instance  of 
direct  popular  authority  over  the  law,  but  rather  of  revocation 
by  the  legislator.  His  tacit  repeal  of  the  law  is  indeed,  occasioned 
by  popular  refusal  to  accept.  In  the  third  place,  the  law  does 
not  bind  if  it  is  not  just,  for  an  unjust  law  is  no  law  at  all. 
Fourthly,  a  law  which  is  unreasonably  burdensome  to  the  people 
may  sometimes  lack  obligatory  force, — at  least  when  it  is  so 
harsh  that  it  is  tantamount  to  an  unjust  enactment.  Finally, 
when  the  majority  of  the  people  disTcgard  the  law  to  such  an 

'°  Op.  cit.,  lib.  3,  cap.  19,  no.  7. 


MORAL  OBLIGATION  OF  CIVIL  LAW  259 

extent  and  in  such  a  way  that  its  observance  by  a  minority  be- 
comes detrimental  to  the  State,  it  ceases  to  bind  the  individual 
citizen. 

To  sum  up :  The  Catholic  Church,  as  well  as  natural  reason, 
teaches  that  civil  law  binds  in  conscience.  The  ultimate  basis  of 
this  obligation  is  the  natural  law ;  the  immediate  basis  is  the 
authority'  of  the  State.  Civil  laws  of  grave  importance  are 
gravely  obligatory,  unless  the  legislator  formally  intends  their 
binding  force  to  be  slight.  The  general  teaching  of  moral 
theologians  is  that  a  law  is  not  binding  without  at  least  the 
implicit  intention  of  the  legislator.  Some  civil  laws  may  be 
purely  penal,  but  their  number  is  probably  small.  In  general, 
civil  laws  are  binding  without  popular  ratification. 


13.     THE  DUTIES  OF  THE  CITIZEN 
By  Rev.  John  A.  Ryan,  D.D. 

The  obligation  of  the  citizen  to  obey  civil  laws  does  not 
exhaust  his  duties  to  the  State.  So  important  is  the  State  and 
its  functions  that  it  gives  rise  to  a  special  kind  of  justice.  This 
is  called  by  the  moral  theologians  legal  justice,  and  it  is  eom- 
monly  defined  as  that  virtue  which  inclines  the  citizen  to  render 
to  the  community  what  is  due  it  for  the  common  good.^  This 
means  not  only  obedience  to  the  laws,  but  all  those  actions, 
political  and  social,  which  are  necessary  for  the  common  welfare. 
Legal  justice  binds  both  the  ruler  and  the  citizen.  It  o'bliges 
the  former  to  make  the  common  welfare  the  object  of  all  his 
official  acts.  It  obliges  the  citizen  and  the  public  official  alike 
to  comply  with  the  laws,  and  to  give  due  consideration  to  the 
needs  of  the  State  in  all  their  actions  and  relationships. 

The  particular  duties  imposed  upon  public  officials  by  the 
virtue  of  legal  justice,  can  be  stated  summarily  in  a  few  para- 
graphs. The  general  obligation  of  promoting  the  social  good 
implies,  obviously,  that  the  executives,  the  judge,  the  lawmaker, 
are  bound  to  prefer  that  end  to  their  private  advantage.  The 
man  who  regards  public  office  as  an  opportunity  for  private  gain, 
except  incidentally  and  as  a  necessary  consequence  of  faithful 
public  service,  is  false  to  his  trust  and  violates  legal  justice. 
To  accept  a  bribe  for  aid  in  the  enactment  of  a  bad  law,  for 
negligent  or  oppressive  administration  of  the  law,  or  for  unjust 
judicial  conduct,  is  an  evident  moral  wrong.  To  obtain  some 
advantage  on  the  occasion  of  proper  official  actions,  for  example, 
through  some  form  of  "graft,"  is  likewise  a  violation  of  legal 
justice.  Such  conduct  is  generally  forbidden  by  the  civil  law ; 
at  any  rate,  it  renders  right  judgment  and  adequate  perform- 

^  Cf.  Vermeersch,  Quaestiones  de  Justitia,  pp.  39-49. 

260 


THE  DUTIES  OF  THE  CITIZEN  261 

ance  of  official  duties  extremely  difficult.  Public  officials  are  not 
justified  in  exposing  themselves  to  such  a  grave  temptation. 
What  is  true  of  their  own  private  advantage  applies  likewise 
to  that  of  their  friends.  In  their  enactment  and  administration 
of  the  law,  they  may  not  extend  favors  of  any  sort  to  any  in- 
dividual or  class  of  individuals.  The  common  good  must  be 
preferred  to  the  good  of  individuals,  and  all  individuals  must 
be  treated  with  exact  justice. 

Public  officials  are  not  only  bound  to  refrain  from  promoting 
the  interests  of  individuals  at  the  expense  of  the  common  good, 
and  to  avoid  favoritism  toward  certain  individuals,  but  also  to 
extend  rigorous  and  proportionate  justice  to  all  social  classes. 
This  means  that  no  class  should  be  favored  to  the  detriment  of 
the  general  welfare,  and  that  no  class  should  receive  less  than 
its  due  proportion  of  public  protection  and  assistance.  For 
example,  it  is  wrong  to  permit  an  industrial  group  to  exploit 
the  national  resources,  such  as  coal  mines  and  timber,  in  such 
a  way  that  present  or  future  generations  wall  suffer  unnecessary 
hardship.  It  is  wrong  to  give  certain  industrial  interests  the 
benefit  of  a  public  subsidy  or  a  protective  tariff,  the  effect  of 
which  is  to  impose  extortionate  costs  upon  the  great  body  of  the 
consumers.  The  possession  of  unregulated  monopoly  power  is 
likewise  a  cause  of  injury  to  the  public  welfare  which  will  not 
be  tolerated  by  public  officials  who  habitually  fulfill  their  public 
oibligations. 

On  the  other  hand,  every  social  class  has  a  just  claim  against 
the  State  and  its  officials  for  that  measure  of  governmental  pro- 
tection and  assistance  which  is  necessary  to  provide  the  condi- 
tions of  right  and  reasonable  life.  Today  this  principle  receives 
its  chief  application  in  the  weaker  economic  classes.  As  Pope 
Leo  XIII  observed:  "The  richer  classes  have  many  ways  of 
shielding  themselves,  and  stand  less  in  need  of  help  from  the 
State;  whereas,  those  who  are  badly  off  have  no  resources  of 
their  own  to  fall  back  upon,  and  must  chiefly  depend  upon  the 
assistance  of  the  State.  And  it  is  for  this  reason  that  wage  earn- 
ers, who  are  undoubtedly  among  the  weak  and  necessitous,  should 
be  specially  cared  for  and    protected    by    the    government."^ 

*  Encyclical,  On  the  Condition  of  Labor. 


262  STATE  AND   CHURCH 

Therefore,  legislators  are  morally  bound  to  provide  for  minimum 
decent  standards  of  life  and  labor.  This  means  legislation  to 
prevent  child  labor,  an  excessively  long  working  day,  oppressive 
conditions  in  work  places,  unduly  low  wages,  and  the  subjection 
of  the  workers  to  an  inhumane  insecurity  as  regards  unemploy- 
ment, sickness,  accidents,  invalidity,  and  old  age.  Public  officials 
are  likewise  under  obligation  to  promote  in  due  measure  the 
prosperity  of  industrial  enterprise,  to  levy  taxes  in  proportion 
to  ability  and  sacrifice,  and  in  general  to  deal  with  all  classes 
according  to  their  actual  needs  and  deserts,  not  according  to 
some  doctrinaire  theory  of  laissez-faire  or  of  opposition  to  class 
legislation.  In  the  words  of  Pope  Leo  XIII:  ''Among  the 
many  and  grave  duties  of  rulers  who  would  do  their  best  for  the 
people,  the  first  and  chief  is  to  act  with  strict  justice — with  that 
justice  which  is  called  by  the  schoolmen  distributive — towards 
each  and  every  class  alike.  "^ 

One  of  the  primary  duties  of  public  officials  is  to  possess  an 
adequate  knowledge  of  what  constitutes  the  common  welfare, 
and  of  the  means  by  which  it  is  best  promoted.  This  obligation 
is  disregarded  by  a  large  proportion  of  those  who  seek  public 
office.  Men  who  are  otherwise  conscientious  assume  that  good 
will  and  right  motives  are  a  sufficient  equipment  for  public 
service.  When  we  consider  the  enormously  extended  functions 
of  the  modern  State,  the  numerous  and  profound  ways  in  which 
its  activities  affect  the  welfare  of  all  the  people,  and  the  conse- 
quent complexity  of  legislating  and  governing  wisely,  we  see 
that  this  notion  is  utterly  mistaken.  Only  in  local  governments 
and  subordinate  official  positions  is  it  true  that  common  honesty 
plus  common  sense  suffice  for  those  who  are  charged  with  the 
duty  of  caring  for  the  public  welfare.  In  all  the  more  impor- 
tant legislative  and  executive  officers,  a  considerable  amount  of 
special  and  specific  knowledge  is  essential  to  an  adequate  dis- 
charge of  official  obligations. 

So  much  for  the  nature  and  elements  of  the  obligation  resting 
upon  public  officials.  The  scope  of  their  obligation  is  identical 
with  the  province  of  the  State.  This  has  been  described  in  pre- 
ceding chapters  on  the  State's  end  and  functions.    All  of  these 

•Encyclical,  On  the  Condition  of  Loibor. 


THE  DUTIES  OF  THE  CITIZEN  263 

functions,  intellectual,  moral,  religious,  political,  civic,  and 
economic,  public  officials  are  morally  bound  to  perform  in 
accordance  with  the  ])rinciples  of  strict  justice  and  proportionate 
justice. 

The  statement  is  frequently  made  in  the  United  States  that 
public  officials  are  merely  public  servants.  It  is  incorrect. 
They  are,  indeed,  the  servants  of  the  people,  but  they  are  also 
something  more.  Inasmuch  as  their  function  is  that  of  pu'blic 
service,  they  may  properly  be  regarded  as  public  servants;  inas- 
much as  their  position  gives  them  the  authority  to  enact  laws 
which  are  morally  binding  on  the  people,  they  are  not  servants 
but  masters.  Their  character  as  public  servants  does  not  depend 
upon  the  fact  that  they  are  elected  by  the  people ;  for  hereditary 
kings  are  likewise  bound  to  serve  the  common  welfare.  In  a 
republic  the  members  of  legislatures  may  in  a  special  sense 
be  regarded  as  servants  of  the  people,  whenever  they  are  in- 
structed by  the  electors  to  carry  out  certain  political  policies. 
Their  promise  to  pursue  this  course  creates  a  particular  responsi- 
bility to  the  people,  and  renders  their  position  analogous  to  that 
of  servants  or  agents.  Nevertheless,  they  are  masters  and  rulers 
when  they  enact  the  legislation  necessary  to  carry  out  the  policies 
to  which  they  have  committed  themselves. 

The  first  duty  of  the  citizen  is  obedience  to  law.  It  extends 
to  the  ordinances  of  every  jurisdiction  in  which  the  citizen  finds 
himself,  national,  State,  and  municipal.  The  basis,  nature,  and 
limits  of  this  duty  have  been  described  in  the  preceding  chapter. 

A  second  duty  is  that  of  respect  for  public  authority,  and 
this  means  both  public  officials  and  their  enactments.  Of  course, 
this  duty  can  be  exaggerated,  but  in  our  day  and  country  the 
opposite  perversion  is  much  more  frequent.  Through  false  in- 
ferences drawn  from  the  principles  of  democracy,  men  are 
inclined  to  minimize,  or  even  to  reject  entirely,  this  obligation. 
Conscious  that  elected  officials  are  human  beings  of  the  same 
clay  as  himself,  and  dependent  upon  him  for  an  elevation  that 
it  only  temporary,  the  citizen  easily  assumes  that  to  show  them 
respect  is  undemocratic  and  unworthy.  The  Century  Dictianary 
defines  respect  as,  ''the  feeling  of  esteem,  regard,  or  consideration 
excited  by   the   contemplation   of   personal  worth,   dignity,    or 


264  STATE   AND   CHURCH 

power ;  also  a  similar  feeling  excited  by  corresponding  attributes 
in  things."  While  public  officials  are  sometimes  lacking  in 
personal  worth  and  dignity,  they  are  always  the  possessors  and 
custodians  of  political  power,  which  of  its  nature  demands 
esteem  and  consideration.  Were  this  attitude  habitually  taken 
by  the  citizens,  the  problem  of  securing  law  observance,  would 
be  greatly  simplified.  The  man  who  refuses  respect  to  civil 
authority  because  he  fears  that  it  would  demean  or  degrade  him, 
exhibits  the  slave  mind  and  temper ;  for  he  has  not  sufficient  con- 
fidence in  his  own  worth  to  feel  that  he  can  afford  to  give  honor 
where  honor  is  due,  or  to  recognize  any  kind  of  superiority. 
Such  a  man  is  not  only  a  bad  citizen  but  a  detriment  to  any 
social  group. 

Closely  connected  with  obedience  is  the  duty  of  loyalty.  In 
essence  loyalty  means  faithfulness  and  constancy  in  allegiance 
and  service.  To  the  idea  of  obedience,  which  may  be  quite 
formal,  mechanical,  and  even  reluctant,  it  adds  the  notions  of 
intensity,  emotion,  spontaneity,  and  constancy.  The  genuinely 
loyal  citizen  is  always  ready  and  eager,  not  only  to  obey  the 
laws,  but  to  support  and  maintain  the  political  institutions  of 
his  country.  If  the  citizen  merely  refrains  from  seditious  or 
treasonable  conduct  his  loyalty  is  negative  and  imperfect. 
Whether  positive  or  negative,  loyalty  always  implies  a  certain 
habitual  spirit  and  attitude  toward  laws  and  institutions.  It 
habitually  recognizes  that  a  presumption  exists  in  favor  of 
organic  and!  statutory  enactments  and  principles.  The  loyal 
citizen  is  always  disposed  to  give  his  government  and  his  political 
institutions  ' '  the  benefit  of  the  doubt, ' '  and  to  withhold  obedience 
or  support  only  when  the  doubt  is  converted  into  moral  certainty 
that  the  laws  or  the  government  are  in  the  wrong.  In  a  word, 
the  habitual  attitude  of  the  loyal  citizen  is  that  of  sympathetic 
faith,  not  that  of  criticality  and  distrust. 

The  participation  of  the  United  States  in  the  great  war  made 
the  subject  of  loyalty  lively  and  very  practical.  As  might  have 
been  expected,  the  discussion  gave  ignorant,  prejudiced,  and 
selfish  men  the  opportunity  to  exploit  perverted  notions  of 
loyalty.  During  and  since  the  war,  various  groups  and  organiza- 
tions endeavored  with  consideraible  success  to  fasten  the  stigma 


THE  DUTIES  OF  THE  CITIZEN  265 

of  disloyalty  upon  many  of  their  fellow  citizens  who  were  guilty 
of  neither  treason  nor  sedition.  The  conception  of  loyalty  to 
the  Constitution  became  perverted  into  the  doctrine  that  any 
attempt  to  change  the  Constitution,  even  by  legitimate  means, 
is  disloyal.  Not  only  the  method  but  the  scope  of  loyalty  was 
distorted.  The  demand  was  impudently  and  blatantly  made 
that  all  citizens  should  show  loyalty  not  only  to  our  political  and 
legal  institutions,  but  also  to  our  industrial  institutions,  specifi- 
cally to  the  existing  positions  and  relations  of  capital  and  labor. 
Any  theory  or  movement  which  aimed  at  essentially  modifying 
the  industrial  sj'stem  or  diminishing  the  power  of  capital, 
whether  through  Socialism,  Guildism,  or  co-operative  enterprise, 
was  denounced  as  seditious  and  un-American.  It  is  significant 
that  both  these  forms  of  exaggeration  were,  in  the  main,  com- 
mitted by  the  same  persons.  They  denounced  any  eifort  to 
change  the  Constitution  because  they  dislike  changes  which 
would  facilitate  industrial  reforms  and  social  justice ;  they  strove 
to  place  industrial  institutions  on  the  same  plane  of  authority 
as  political  institutions  because  they  wished  to  perpetuate 
economic  injustice.  In  short,  the  perversions  and  exaggera- 
tions of  the  notion  and  duty  of  loyalty  were  mainly  determined 
by  sordid  economic  motives. 

These  corruptions  of  a  noible  sentiment  and  doctrine  do  not 
merit  a  formal  refutation.  Loyalty  to  political  institutions  does 
not  exclude  the  desire  or  the  effort  to  modify  or  even  to  abolish 
them  by  orderly  and  reasonable  processes.  Loyalty  to  the  State, 
to  one's  country,  to  the  public  weal,  does  not  include  belief  in, 
love  of,  or  defence  of  existing  private  institutions,  industrial  or 
other.  The  loyalty  which  is  incumbent  upon  the  citizen,  as 
citizen,  concerns  only  political  institutions  and  relations.  The 
organized  attempt  to  make  it  apply  to  the  economic  order,  is 
one  of  the  most  extraordinarj^  and  brazen  performances  in  the 
history  of  human  selfishness.  It  was  pos'sible  only  in  the  vitiated 
atmosphere  of  war,  and  in  the  abnormal  ps^'chology  of  the  years 
immediately  following. 

In  his  excellent  brochure  on  Christian  Citizenship,  the  Kev. 
Thomas  Wright  declares  that  obedience,  respect,  and  loyalty  are 


266  STATE  AND   CHURCH 

the  constituent  elements  of  patriotism/  Prolbably  this  is  as  satis- 
factory as  any  other  analysis  of  the  vague,  though  apparently 
elementary,  sentiment  that  we  call  patriotism.  The  good  citizen 
loves  to  be  acclaimed  a  patriot,  and  the  orator  finds  patriotism 
one  of  the  most  appealing  and  popular  subjects.  Nevertheless, 
it  is  very  elusive.  To  the  average  man  it  means  love  of  country, 
but  what  does  love  of  country  mean?  Not  merely  love  of  green 
fields,  lofty  mountains,  and  winding  rivers;  not  always  love  of 
existing  political  institutions.  In  time  of  actual  or  threatened 
war,  the  idea  of  patriotism  is  very  simple.  It  means  support  and 
defence  of  one's  country  against  armed  attack. 

In  time  of  peace,  the  phrase,  "love  of  country,"  means  many 
things  to  many  minds.  The  object  of  the  love  may  be  the 
physical  characteristics  of  the  country,  or  its  economic  and  social 
opportunities,  or  its  government,  or  its  political  ideals,  or  its 
history,  or  some  combination  of  these  entities.  As  commonly 
used,  the  term  patriotism  has  almost  always  an  international 
connotation.  It  appeals  to  the  national  consciousness.  It  brings 
before  the  mind  the  facts  of  national  individuality,  separateness, 
distinctness  of  interests.  It  lays  stress  upon  the  welfare  of  one's 
own  country  against  the  welfare  of  other  countries.  Too  often 
it  takes  the  form  of  boasting,  jingoism,  contempt  of  foreign 
nations,  and  identifies  the  national  welfare  with  national  power, 
imperialism,  and  agression.  The  average  citizen  frequently  con- 
fuses patriotism  with  national  jealousy  and  provincialism.  He 
does  not  regularly  think  of  it  as  having  anything  to  do  with 
internal  affairs. 

Adequate  and  rational  patriotism  should  be  quite  as  active  in 
peace  as  in  war,  and  it  should  extend  to  every  matter  that  affects 
the  common  good.  If  patriotism  is  love  of  country  its  only 
rational  and  concrete  meaning  is  love  of  the  people  who  inhabit 
the  country  and  compose  the  State,  in  other  words,  love  of  one's 
fellow  citizens.  Therefore,  its  ultimate  object  is  the  same  as 
that  of  the  State,  namely,  the  common  good.  In  time  of  peace 
the  common  good  is  much  more  dependent  upon  domestic  legis- 

*P.  61.  The  subject  of  patriotism  is  presented  from  two  different  view- 
points by  Archbishop  Ireland  and  Archbishop  Spalding  in  the  productions 
reprinted  in   this  volume. 


THE  DUTIES  OP  THE  CITIZEN  267 

lation  and  administration  than  upon  foreign  policies.  The  true 
patriot  realizes  this  and  strives  to  promote  the  common  good  in 
all  his  political  activities.  The  man  who  participates  in  political 
corruption,  or  uses  his  political  position  or  influence  for  the 
undue  advantage  of  any  social  group  or  for  the  oppression  of 
any  social  class,  is  not  a  patriot,  no  matter  how  loudly  he  may 
acclaim  the  glories  of  his  country,  or  how  truculently  he  may 
proclaim  his  willingness  to  fight  foreigners. 

Taking  up  now  the  more  specific  duties  of  the  citizen,  we  find 
that  they  may  be  conveniently  grouped  under  two  heads:  Those 
which  are  elementary  and  which  exist  under  all  forms  of  govern- 
ment; those  which  are  complex  and  have  place  only  in  a  State 
that  possesses  representative  institutions.  The  most  important 
of  the  specific  elementary  duties  are  concerned  with  taxation 
and  military  service. 

According  to  Catholic  teaching,  statutes  imposing  taxes  bind 
in  conscience.  The  general  reason  is  the  same  as  that  which 
attaches  moral  obligation  to  other  civil  laws.  That  is  the  common 
welfare.  Since  government  cannot  maintain  itself  nor  perform 
its  functions  without  revenues,  and  since  it  has  no  other  means 
of  obtaining  them  than  taxation,  the  citizens  are  morally  bound 
to  provide  the  necessary  revenues  in  this  manner.  Moreover, 
the  obligation  is  not  merely  one  of  legal  justice,  that  justice 
which  requires  citizens  to  promote  the  common  good,  but  also 
of  strict  justice,  that  justice  which  requires  restitution  to  be 
made  when  it  is  violated.^  If  the  citizens  fail  to  pay  taxes  they 
sometimes  inflict  injury  upon  the  State,  injury  which  can  be 
measured  in  terms  of  money  and  repaired  by  pa;yTnents  of  money. 
"When  the  evasion  does  not  produce  such  injury,  owing  to  the 
fact  that  the  authorities  increase  the  tax  rate,  or  devise  other 
and  more  effective  forms  of  taxation,  the  obligation  of  making 
restitution  will  have  a  different  object.  The  real  beneficiaries  of 
restitution  will  then  be  those  citizens  who  have  acted  consci- 
entiously and  paid  the  full  measure  of  taxes  levied  upon  them. 

Let  us  suppose  that  a  tax  rate  of  one  and  one-half  per  cent 
will  yield  sufficient  revenue  for  a  city  if  all  the  citizens  contribute 
their  proportionate  share.     Through  various  devices  very  many 

'Cf.  Bouquillon,  Theologia  Moralis  Fundamentalis,  pp.  460-463. 


268  STATE   AND   CHURCH 

of  them  evade  a  considerable  part  of  their  obligation.  In  so  far 
as  the  deficit  is  not  made  up  through  an  increase  in  the  tax  rate, 
an  injury  is  done  the  public  welfare.  If  the  rate  is  raised  suf- 
ficiently to  bring  in  all  the  necessary  revenues,  the  conscientious 
taxpayers  contribute  more  than  their  proper  share,  and,  there- 
fore, suffer  injustice  at  the  hands  of  the  dishonest.  If  the 
evasions  are  so  great  as  to  require  that  the  rate  be  raised  to 
two  per  cent,  it  means  that  the  honest  citizens  are  paying  one- 
third  more  than  their  fair  quota.  They  pay  one-third  more  than 
they  would  have  to  pay  if  all  were  as  honest  as  they.  The 
injustice  done  them  by  the  evasive  action  of  their  fellow  citizens 
is  obvious.     Hence  follows  the  obligation  of  restitution. 

These  are  the  general  principles.  Their  application,  however, 
is  not  entirely  simple,  owing  to  the  complexity  and  injustice 
of  our  tax  system,  and  the  very  large  proportion  of  persons  who 
habitually  understate  their  taxable  property.  The  principal 
form  of  taxation,  at  least  in  local  and  State  jurisdictions,  is 
what  is  known  as  the  general  property  tax.  Not  only  does  this 
directly  violate  the  ethical  principle  of  taxation  in  proportion  to 
ability  to  pay,  as  determined  by  comparative  sacrifices,  but  it 
is  apportioned  and  administered  most  inequitably,  and  it  is 
evaded  in  wholesale  fashion.  In  the  words  of  Professor  Selig- 
man,  ''the  general  property  tax,  as  actually  administered,  is 
beyond  doubt  one  of  the  worst  taxes  known  in  the  civilized 
world."®  In  these  circumstances,  the  conscientious  citizen  can- 
not be  required  to  do  more  than  pay  that  proportion  of  the  full 
amount  which  is  paid  by  the  majority.  If  the  prevailing  under- 
statement of  taxable  property  amounts  to  twenty-five  per  cent, 
the  citizen  who  pays  on  more  than  three-fourths  of  his  goods 
contributes  more  than  his  share.^  The  general  rule  of  action 
may  properly  be  applied  to  other  kinds  of  taxes  where  evasion 
is  considerable  and  notorious.  Of  course,  the  conscientious 
citizen  will  not  take  advantage  of  it  until  he  is  morally  certain 
of  the  facts. 

It  is  sometimes  asserted  that  certain  tax  laws  are  purely  penal, 
obliging  the  citizen  only  to  submit  to  the  penalty  in  case  his 

'Essays  in  Taxation,  p.  61. 

^Cf.  Tanquerey,  De  Justitia,  no.  597. 


THE  DUTIES  OF  THE  CITIZEN  269 

evasion  is  detected.  From  the  discussion  in  the  last  chapter, 
it  seems  fairly  clear  that  this  theory  must  be  applied  with  great 
caution,  and  that  the  tax  laws  which  fall  under  it  are  excep- 
tional. Tariff  duties  are  the  taxes  most  commonly  adduced. 
Probably  the  laws  prescribing  these  are  purely  penal,  not  only 
because  of  the  common  popular  conviction,  but  because  they  are 
saturated  with  economic  and  ethical  inequalities. 

As  a  rule,  the  citizen  is  not  bound  to  pay  taxes  until  the 
amount  due  from  him  has  been  defined  by  the  fiscal  authorities. 
When  he  is  legally  required  to  furnish  a  statement  of  his  prop- 
erty, he  is  obliged  by  legal  justice  to  comply.  Is  he  obliged 
to  volunteer  such  information?  For  example,  is  a  person  mor- 
ally bound  to  inform  the  authorities  that  his  income  is  suf- 
ficiently large  to  subject  him  to  the  income  tax?  If  he  does  not 
give  this  spontaneous  information  he  will  escape.  The  income 
tax  law  requires  the  citizens  to  make  such  a  statement,  and 
penalizes  them  for  failure  to  do  so  when  their  evasion  of  the 
tax  has  been  detected.  It  seems  clear,  therefore,  that  the  citizen 
is  bound  by  legal  jusi;ice  to  provide  a  statement  of  his  taxable 
property,  not  only  in  response  to  an  official  requisition,  but  some- 
times in  the  absence  of  such  a  requisition. 

Another  elementary  obligation  of  the  citizen  is  that  of  military 
service,  when  required  by  a  law  of  conscription.  The  object  of 
such  a  law  is  of  the  greatest  importance  to  the  public  weal.  As 
a  rule,  the  obligation  is  gravely  binding  in  conscience.  Hence 
all  fraudulent  methods  of  escaping  its  operation  are  a  violation 
of  legal  justice. 

The  second  class  of  duties  incumbent  on  the  citizen  results 
from  his  electoral  functions.  In  a  republic,  legislation  and  ad- 
ministration depend  finally  upon  the  intelligence  and  morality 
of  the  voters.  They  have  it  in  their  power  to  make  the  govern- 
ment a  good  one  or  a  bad  one.  Whether  the  common  good  will 
be  promoted  or  injured,  depends  upon  the  kind  of  laws  enacted 
and  the  manner  in  which  they  are  administered;  but  the  char- 
acter of  the  laws  and  the  administration  is  primarily  determined 
iby  the  way  in  which  the  citizens  discharge  their  function  of 
choosing  legislators  and  administrators.     Therefore,  this  func- 


270  STATE   AND   CHURCH 

tion  is  of  the  gravest  importance  and  the  obligation  which  it 
imposes  is  likewise  grave. 

It  must  be  admitted  that  the  importance  and  gravity  of  this 
obligation  is  frequently  ignored  by  Catholics,  as  well  as  by  other 
citizens.  Writing  of  Great  Britain,  the  Rev.  Thomas  Wright 
declares:  "There  are  large  numbers  of  Catholics  in  this  land 
with  but  little  appreciation  of  the  strong  interrelation  which 
exists  between  true  citizenship  and  Christianity.  .  .  .  Many 
excuses,  it  must  be  owned,  may  be  alleged  in  extenuation  of  the 
apathy  of  Catholics  toward  their  civic  obligations  in  these  lands. 
Time,  however,  has  undermined  the  snibstance  of  these  apologetic 
pleas.  Catholics  are  now  able  to  appeal  to  no  sufficient  cause 
why  they  should  stand  aloof  from  public  affairs,  or  why,  par- 
ticipating in  them,  they  need  indiscriminately  follow  the  policies 
of  parties  without  thought  or  test  of  their  moral  justification."* 

These  observations  may  be  applied  in  full  measure  to  the 
Catholics  of  the  United  States.  Like  their  coreligionists  of  Great 
Britain,  they  can  show  historical  conditions  to  extenuate,  if  not 
to  justify,  their  neglect  of  political  obligations.  Very  many, 
if  not  the  majority,  of  them  are  persons,  or  the  descendants  of 
persons,  who  came  from  countries  whose  governments  treated 
Catholics  unfairly  and  allowed  them  very  little  participation 
in  public  affairs.  As  a  consequence,  a  large  proportion  of 
American  Catholics  have  been,  until  quite  recently,  possessed 
of  what  has  been  happily  characterized  as  "the  psychology  of 
persecution."  They  have  looked  upon  government  with  a  cer- 
tain measure  of  distrust,  and,  therefore,  have  been  predisposed 
to  ignore  or  to  minimize  their  electoral  responsibility.  Many  of 
them  have  easily  and  complacently  accepted  the  cynical  judg- 
ment that  "politics  is  a  rotten  business,"  and  have  either  held 
aloof  or  permitted  their  political  influence  to  be  utilized  by 
special  and  unworthy  interests. 

The  Catholic  teaching  on  the  duty  of  exercising  the  voting 
franchise,  as  s'tated  in  the  authoritative  manuals  of  moral  the- 
ology, may  be  summed  up  as  follows:® 

•  Christian  Citisenship,  pp.  17,  18. 

•  Cf .  Tanquerey,  De  Justitia,  pp.  475-477 ;  Noldin,  De  Praeceptis,  pp. 
336-339. 


THE  DUTIES  OF  THE  CITIZEN  271 

The  obligation  of  taking  part  in  the  election  of  candidates 
for  civil  offices,  is  an  obligation  of  legal  justice.  The  citizens 
are  bound  to  promote  the  common  good  in  all  reasonable  ways. 
The  franchise  enables  them  to  further  or  to  hinder  the  common 
weal  greatly  and  fundamentally,  inasmuch  as  the  quality  of  the 
government  depends  upon  the  kind  of  officials  they  elect.  Not 
only  questions  of  politics,  but  social,  industrial,  educational, 
moral  and  religious  subjects  are  regulated  by  legislative  bodies 
and  administered  by  executives.  Therefore,  the  matter  is  of 
grave  importance,  and  the  obligation  of  the  citizen  to  participate 
in  the  election  and  to  support  tit  candidates  is  correspondingly 
grave.  According  to  Tanquerey,  the  elector  cannot  free  himself 
from  this  obligation  by  any  slight  cause  or  reason,  such  as, 
going  hunting,  or  criticism  by  his  neighbors.  The  excusing 
cause  needs  to  be  of  a  grave  nature,  such  as  loss  of  one's  means 
of  livelihood.  A  slight  cause  will  relieve  the  citizen  from  the 
obligation  of  voting  only  when  he  is  morally  certain  that  he 
cannot  atifect  the  immediate  result.  Even  then,  he  ought  to  take 
part  in  the  election  to  show  good  example,  and  to  hasten  the 
day  when  the  cause  which  he  supports  will  command  a  majority 
of  the  voters.^" 

Just  as  the  official  is  obliged  to  refrain  from  promoting  the 
interests  of  individuals  as  against  the  common  good,  so  the 
elector  is  morally  bound  to  cast  his  vote  for  the  common  welfare, 
instead  of  for  the  benefit  of  private  persons  or  groups.  This 
principle  is  very  often  forgotten  by  well-meaning  citizens;  for 
example,  by  giving  their  political  support  to  a  friend,  or  to  a 
member  of  their  own  race  or  religion,  when  he  has  not  the 
required  moral  or  intellectual  equipment,  or  when  he  is  the 
upholder  of  socially  harmful  policies.  Too  often  in  such  situa- 
tions the  honest  citizen  salves  hi.s  conscience  with  the  excuse 
that  the  opposing  candidate  "is  just  as  bad."  Were  this  the 
fact  one  might  legitimately  determine  one's  choice  on  the  basis 
of  personal  friendship,  or  racial  or  religious  affiliation,  or  other 
extrinsic  considerations;  but  the  general  fact  is  that  voters  who 
adopt  this  course  do  not  take  adequate  care  to  find  out  whether 
the  candidate  of  the  opposition  is  in  reality  ''just  as  bad." 
"  Tanquerey  loc.  cit. 


272  STATE   AND   CHURCH 

They  too  easily  decide  the  question  on  the  basis  of  their  inclina- 
tions and'  predilections. 

Closely  connected  with  this  unjustifiable  practice  is  that  of 
ignoring  principles  and  policies  in  the  exercise  of  the  franchise. 
"Vote  for  a  good  man,  regardless  of  party,"  is  a  plausible  but 
essentially  inadequate  political  rule.  A  distinction  should  be 
drawn  between  legislative  offices  and  those  which  are  merely  ad- 
ministrative. In  choosing  a  city  treasurer  or  a  county  auditor,  the 
only  pertinent  qualifications  are  honesty,  intellectual  capacity  and 
technical  equipment.  There  is  involved  no  question  of  legislative 
policy.  When  the  office  to  be  filled  is  that  of  Governor  of  a 
State,  President  of  the  United  States,  member  of  a  State  legis- 
lature, or  congressman,  other  qualifications  are  essential  in  ad- 
dition to  those  just  mentioned.  The  "good  man"  may  have 
some  verj^  harmful  views  concerning  political  and  industrial 
policies.  He  may  sincerely  favor  national  imperialism  and 
jingoism,  or  legislation  to  promote  the  undue  aggrandizement  of 
one  social  class  or  the  oppression  of  another  social  class. 
Obviously  the  citizen  does  not  fulfil  his  duty  of  promoting  the 
common  good  when  he  votes  for  a  "good  man"  of  this  sort. 
Sometimes  the  common  welfare  will  suffer  less  through  the  elec- 
tion of  a  man  whose  political  policies  are  right  but  whose  moral 
or  intellectual  equipment  is  deficient,  than  through  the  elevation 
of  a  "good  man"  who  gives  his  adhesion  to  wrong  policies. 

It  is  sometimes  said  that  the  good  man  in  other  relations  of 
life  is  always  the  best  kind  of  a  citizen.  This  statement  is  only 
a  half  truth.  The  unqualified  propagation  and  acceptance  of  it 
is  a  serious  obstacle  to  the  improvement  of  citizenship.  Fidelity 
to  one's  duties  as  husband,  father,  son,  brother,  neighbor,  em- 
ployer, employee,  buyer,  seller,  debtor,  creditor,  professional  man, 
and  client, — does,  indeed,  contribute  very  greatly  toward  the 
common  welfare.  Actions  performed  under  the  direction  of 
the  domestic  and  soeial  virtues  necessarily  promote  individual 
and  social  happiness,  just  as  the  opposite  actions  are  an  injury 
to  the  commonwealth.  Nevertheless,  these  virtues  are  not  a 
complete  equipment  for  all  the  duties  of  citizenship.  They  do 
not  of  themselves  provide  the  citizen  with  that  specific  knowledge 
which  he  requires  as  a  voter,  nor  with  that  civic  consciousness 


THE  DUTIES  OF  THE  CITIZEN  273 

which  is  essential  to  good  citizenship.  Just  as  an  honest  em- 
ployer may  treat  his  employees  unjustly  because  he  is  unac- 
quainted with  those  moral  principles  which  apply  specifically 
to  industrial  relations,  or  because  he  has  an  insufficient 
knowledge  of  the  living  conditions  and  needs  of  the  workers, 
so  the  virtuous  citizen  may  fail  in  his  duties  to  the  State  because 
he  does  not  realize  the  importance  of  this  particular  respon- 
sibility, or  because  he  lacks  the  specific  political  knowledge 
which  would  enable  him  to  exercise  his  suffrage  for  the  best 
interests  of  the  commonwealth.  In  this  category  are  the  man 
who  does  not  realize  how.  fundamentally  good  government 
depends  upon  the  electors,  the  man  who  lazily  assumes  that 
politics  is  necessarily  corrupt,  and  the  man  who  thinks  it  suf- 
ficient to  vote  for  good  men,  without  any  reference  to  the 
helpfulness  or  harmfulness  of  their  political  principles  and 
policies. 

In  a  word,  the  good  man  is  not  a  good  citizen  unless  he 
possesses  the  specific  knowledge  essential  to  good  citizenship. 
This  comprises  adequate  perception  of  the  citizen's  power  and 
responsibility,  and  a  reasonable  degree  of  acquaintance  with 
political  institutions,  personages,  and  policies.  The  good  citizen 
recognizes  all  these  obligations  and  makes  reasonable  and  con- 
tinuous efforts  to  fulfil  them.  Such  a  man,  and  only  such  a 
man,  possesses  an  adequate  civic  consciousness. 

Worth  quoting  are  the  following  extracts  from  a  letter  ad- 
dressed to  his  people,  in  the  year  1921,  by  the  late  Cardinal 
Amette,  Archbishop  of  Paris: 

"In  the  joint  letter  which  they  recently  addressed  to  the 
French  Catholics,  the  bishops  of  France  said:  *  It  is  a  duty  of 
conscience  for  all  citizens  honored  with  the  right  of  suffrage  to 
vote  honestly  and  wisely  with  the  sole  aim  of  benefiting  the 
country.  The  citizen  is  subject  to  the  divine  law  as  is  the 
Christian.  Of  our  votes,  as  of  all  our  actions,  God  will  demand 
an  account.  The  duty  of  voting  is  so  much  the  more  binding 
upon  conscience  because  on  its  good  or  evil  exercise  depend  the 
gravesi;  interests  of  the  country  and  of  religion.' 

"It  is  your  duty  to  vote.  To  neglect  to  do  so  would  be  a 
culpable  abdication  of  duty  on  your  part.     It  is  your  duty  to 


274  STATE   AND   CHURCH 

vote  honestly;  that  is  to  say,  for  men  worthy  of  your  esteem 
and  trust.  It  is  your  duty  to  vote  wisely;  that  is  to  say,  in 
such  a  way  as  not  to  waste  your  votes.  It  would  be  better  to 
cast  them  for  candidates  who,  although  not  giving  complete 
satisfaction  to  all  our  legitimate  demands,  would  lead  us  to 
expect  from  them  a  line  of  conduct  useful  to  the  country,  rather 
than  to  keep  your  votes  for  others  whose  program  would  indeed 
be  more  perfect,  but  whose  almost  certain  defeat  might  open 
the  door  to  the  enemies  of  religion  and  of  the  social  order." 

Tanquerey  points  out  that,  in  order  to  be  able  to  vote  rightly 
and  intelligently,  in  order  to  possess  the  specific  knowledge 
requisite  for  this  purpose,  upright  citizens  should  organize  and 
participate  in  political  associations.^^  This  is  obvious.  Men 
unite  in  trade  unions,  manufacturers'  associations,  chambers  of 
commerce,  and  professional  societies  of  various  kinds  for  the 
promotion  of  their  economic  interests.  Hundreds  of  thousands 
of  good  men,  thus  occupationally  organized,  fail  to  see  the 
necessity  of  organizing  politically  for  the  protection  of  their 
civic  interests  and  the  effective  performance  of  their  duties 
to  the  commonwealth.  The  conduct  of  political  organizations 
they  leave  to  professional  politicans  who  are  usually  in  the 
service  of  selfish  private  interests.  When  the  inactive  citizens 
see  the  evil  results  of  this  arrangement,  they  attempt  to  justify 
their  aloofness  by  the  reflection  that  politics  is  essentially  cor- 
rupt. This  lazy  pessimism  is  not  warranted  by  anything 
inherent  in  political  affairs.  It  represents  a  vain  attempt  to 
evade  moral  responsibility.  If  politics  is  rotten,  a  large  part 
of  the  responsibility  rests  upon  well  meaning  but  indolent 
citizens. 

In  view  of  the  fundamental  and  immense  importance  to  the 
State  of  the  voting  function,  and  since  the  electors  are  in  a 
practical  sense  the  primary  political  authority,  it  would  seem 
that  the  electoral  duties  of  the  citizens  are  not  merely  duties  of 
legal  justice.  It  would  seem  that,  like  the  obligations  of  public 
officials  they  also  fall  under  the  head  of  strict  or  commutative 
justice.  A  group  of  legislators  inflict  injury  upon  the  com- 
munity by  a  bad  law,  thereby  violating  strict  justice :     Are  not 

"  Loc.  cit. 


THE  DUTIES  OF  THE  CITIZEN  275 

the  citizens  who  elected  them  guilty  of  the  same  kind  of  injustice, 
in  so  far  as  they  foresaw  this  possibility?  The  difference  between 
their  offence  and  that  of  the  legislators  seems  to  be  one  of  degree, 
not  one  of  kind. 

Among  the  electoral  dutiesi  of  the  citizen  is  that  of  becoming 
a  candidate  for  public  office  in  some  circumstances.  Of  course, 
this  applies  only  to  that  small  minority  who  are  competent.  In 
certain  situations,  says  Noldin,  an  upright  Catholic  is  bound  by 
a  grave  obligation  to  become  a  candidate  for  an  administrative 
or  legislative  office;  that  is,  when  his  election  is  certain,  when  he 
is  ahle  to  avert  grave  evils  from  the  community,  when  he  can 
accept  the  office  without  grave  inconvenience  to  himself,  and 
when  no  other  equally  competent  candidate  is  available.^^ 
In  as  much  as  the  issues  involved  in  such  a  situation  are  of 
much  graver  consequence  than  those  dependent  upon  the  ballot 
of  the  private  citizen,  the  man  who  refuses  to  become  a  candidate 
for  office  will  need  a  much  graver  reason  to  excuse  him  than 
will  the  citizen  who  merely  neglects  to  vote. 

"  Loc.  cit. 


14.     THE  RIGHTS  OF  THE  CITIZEN 
By  Rev.  John  A.  Ryan,  D.D. 

The  citizen  possesses  two  disi:inct  classes  of  rights.  One  of 
these  belongs  to  him  as  a  human  being,  the  other  as  a  member 
of  the  State.  Rights  of  the  first  class  are  called  natural,  those 
of  the  second  class  civil.  The  distinction  between  the  two 
depends,  not  so  much  upon  their  nature,  as  upon  their  source. 
Natural  rights  are  those  which  are  derived  from  the  individual's 
nature,  needs,  and  destiny.  They  are  those  moral  prerogatives 
which  the  individual  needs  in  order  to  live  a  reasonable  life, 
and  attain  the  end  appointed  for  him  by  God.  Civil  rights  are 
conferred  by  the  State  for  the  promotion  of  the  common  good, 
and  for  the  welfare  of  the  individual  citizen. 

Probably  a  majority  of  the  writers  on  political  science,  as  well 
as  the  greater  part  of  non-Catholic  authorities  in  economics  and 
sociology,  reject  the  doctrine  of  natural  rights.  In  their  opin- 
ion, all  rights  are  derived  from  the  State.  Hence  the  citizen 
possesses  only  civil  rights.  It  is  not  necessary  in  this  place  to 
set  down  a  formal  refutation  of  this  theory.  It  will  be  sufficient 
to  point  out  that  the  theory  inverts  the  position  of  the  State 
relatively  to  the  individual.  According  to  its  logic,  the  indi- 
vidual exists  for  the  State.  Against  the  State  he  has  no  moral 
rights,  but  only  those  immunities  and  guarantees  which  the  State 
itself  is  willing  to  grant.  Consequently,  the  State  may,  if  it 
chooses,  deprive  the  citizen  of  all  rights  whatever,  may  arbitrarily 
take  away  his  liberty  and  his  property,  and  even  put  him  to 
death.  According  to  the  Catholic  doctrine,  the  State  exists  ulti- 
mately for  the  individual,  and  the  individual  is  endowed  with 
certain  natural  rights  which  helong  to  him  because  of  his  nature, 
because  he  is  a  person,  and  because  of  his  intrinsic  sacredness. 

276 


THE  RIGHTS  OF  THE  CITIZEN  277 

Ag  the  State  does  not  create  or  confer  these  rights,  it  cannot  take 
them  away. 

This  doctrine  is  not  only  Catholic,  but  it  is  a  part  of  the 
traditional  American  political  theory,  and  it  is  specifically  in- 
cluded in  the  Declaration  of  Independence.  The  second  para- 
graph of  that  immortal  document  begins  thus:  "We  hold  these 
truths  to  be  self-evident,  that  all  men  are  created  equal,  that 
they  are  endowed,  by  their  Creator  with  certain  inalienable 
rights,  that  among  these  are  life,  liberty,  and  the  pursuit  of 
happiness."  Although  the  last  clause  of  this  statement  is  not 
an  explicit  enumeration  of  all  man's  natural  rights,  it  does 
embrace  them  all  implicitly.  Life  and  liberty  cover  a  very  large 
part  of  the  field  of  natural  rights;  the  pursuit  of  happiness 
implies  the  rights  of  marriage  and  of  property,  which  embrace 
the  remainder  of  that  field.  Man's  natural  rights  may,  there- 
fore, be  summarized  as  those  of  life,  liberty,  marriage,  and 
property.  Liberty  is,  of  course,  a  wide  conception  extending  to 
physical  movement,  education,  religion,  speech  and  writing. 
Under  the  head  of  life  is  included  immunity  from  all  forms  of 
arbitrary  physical  assault.  All  these  rights  belong  to  the  citizen 
as  a  human  being  because  they  are  all  necessary  for  his  exis- 
tence, for  the  development  of  his  personality,  for  reasonable 
human  living,  and  for  the  attainment  of  the  end  which  God 
commands  him  to  attain.  In  the  United  States  they  are  all 
likewise  rights  of  the  citizen  as  citizen.  In  other  words,  they 
are  civil  as  well  as  natural  rights. 

A  systematic  exposition  and  defence  of  these  several  rights 
is  not  necessary  in  this  chapter.  Most  of  them  have  been  suf- 
ficiently treated  in  earlier  sections  of  this  volume.  The  rigkt 
to  life  is  intrinsic ;  is  an  end  in  itself,  being  directly  based  upon 
the  sacredness  of  personality.  The  right  to  the  various  forms 
of  liberty  is  a  means  to  the  end  of  right  and  reasonable  living. 
It  does  not  include  the  right  to  do  or  say  unreasonable  things. 
Like  all  other  rights  which  are  means,  it  is  limited  by  the  ends 
which  it  is  designed  to  promote.  The  right  to  marry  is  directly 
necessary  for  the  welfare  of  the  individual.  Even  though  a 
person  does  not  need  to  marry  and  can  secure  his  welfare  better 
as  a  celibate,  he  has,  nevertheless,  the  right  to  determine  for 


278  STATE  AND   CHURCH 

himself  whether  or  not  he  shall  marry.  The  State  has  no  right 
to  decide  this  question  for  him.  Property  in  those  kinds  of 
goods  which  meet  man's  immediate  wants,  such  as  food,  cloth- 
ing, and  shelter,  is  directly  necessary  for  individual  welfare; 
therefore,  the  individual  has  a  natural  right  to  acquire  them 
as  his  own.  Property  in  goods  which  have  a  more  remote 
relation  to  individual  needs,  such  as,  land,  machinery,  and  the 
instruments  of  production  generally,  is  not  directly  and  im- 
mediately necessary  for  the  individual ;  but  the  institution  of 
private  property  in  such  goods  is  essential  to  human  welfare, 
inasmuch  as  no  other  arrangement  is  adequate.  All  the  fore- 
going natural  rights  belong  to  the  individual  as  such,  and  con- 
sequently are  valid  against  the  State. 

The  rights  of  the  American  citizen,  as  such,  are  set  forth  in 
the  Constitution  of  the  United  States,  and  in  the  constitutions 
of  the  various  commonwealths.  They  are  substantially  the  same 
in  all  these  documents.  The  first  amendment  to  the  Consti- 
tution of  the  United  States  reads  thus: 

"Congress  shall  make  no  law  respecting  an  establishment  of 
religion,  or  prohibiting  the  free  exercise  thereof;  or  abridging 
the  freedom  of  speech,  or  of  the  press;  or  the  right  of  the 
people  peaceably  to  assemble,  and  to  petition  the  Government 
for  a  redress  of  grievances. ' ' 

While  the  language  of  this  amendment  seems  to  guarantee 
unlimited  freedom  of  speech  and  of  the  press,  it  has  never  been 
so  interpreted  by  the  lawmakers  or  the  courts.  Rather  has  it 
been  construed  as  that  reasonable  degree  of  liberty  of  speech 
and  writing  which  had  prevailed  in  the  American  colonies  and 
in  England  for  generations.  During  the  recent  war,  therefore, 
Congress  and  many  State  legislatures  enacted  laws  forbidding 
men  to  speak  or  write  anything  tending  to  hinder  effective 
prosecution  of  the  war.  These  laws  were  enacted  under  the 
authority  of  the  war  making  and  war  legislating  powers  con- 
tained in  Section  8  of  Article  1  of  the  Constitution  of  the  United 
States. 

That  form  of  liberty  which  consists  in  immunity  from  invasion 

of  one's  home  is  secured  in  the  fourth  amendment  to  the  national 
Constitution : 


THE  RIGHTS  OF  THE  CITIZEN  279 

"The  right  of  the  people  to  be  secure  in  their  persons, 
houses,  papers,  and  effects,  against  unreasonable  searches  and 
seizures,  shall  not  be  violated,  and  no  Warrants  shall  issue,  but 
upon  probable  cause,  supported  by  Oath  of  affirmation,  and 
particularly  describing  the  place  to  be  searched,  and  the 
persons  or  things  to  be  seized." 

This  means  that  no  private  individTial,  nor  any  officer  of  the 
law,  may  enter  a  man's  house  without  permission,  unless  a  formal 
warrant  has  been  obtained  from  court.  Overzealous  or  mali- 
cious officers  may  not  enter  a  house  against  the  wish  of  the 
occupier  on  mere  suspicion. 

Security  against  unjust  or  abitrar}^  prosecution  by  officers  of 
the  law  is  guaranteed  in  the  sixth  amendment : 

"In  all  criminal  prosecutions,  the  accused  shall  enjoy  the 
right  to  a  speedy  and  public  trial,  by  an  impartial  jury  of  the 
State  and  district  wherein  the  crime  shall  have  been  committed, 
which  district  shall  have  been  previously  ascertained  by  law, 
and  to  be  informed  of  the  nature  and  cause  of  the  accusation; 
to  be  confronted  with  the  witnesses  against  him;  to  have  com- 
pulsory process  for  obtaining  witnesses  in  his  favor,  and  to  have 
the  Assistance  of  Counsel  for  his  defence." 

This  civil  right  is  of  the  highest  importance.  Its  principal 
effects  are  to  protect  the  citizen  against  a  prison  sentence  until 
he  has  had  a  fair  trial ;  to  assure  him  a  trial  as  soon  as  possible 
after  his  arrest;  to  allow  him  witnesses  on  his  behalf,  and  the 
assistance  of  a  lawyer ;  to  give  him  liberty  on  bail  until  his 
trial  begins,  unless  the  crime  with  which  he  is  charged  is  very 
serious ;  and  to  enable  him  to  appeal  to  the  higher  courts  against 
an  unfavorable  sentence.  To  be  sure,  these  guarantees  are 
occasionally  disregarded  by  the  officials,  but  the  number  of  such 
violations  of  civil  right  is  not  large.  They  become  considerable 
only  in  time  of  war,  or  in  a  period  immediately  following  war, 
when  the  calm  judgment  of  the  law  officers  is  disturbed  by  fear 
or  some  other  passion. 

One  of  the  most  important  individual  guarantees  is  contained 
in  the  fifth  amendment  to  the  Constitution,  which  declares  that 
no  person  shall  be  "deprived  of  life,  liberty,  or  property,  with- 
out due  process  of  law ;  nor  shall  private  property  be  taken  for 


280  STATE   AND   CHURCH 

public  use  without  just  compensation."  The  phrase  "due  pro- 
cess of  law"  has,  in  the  course  of  time,  acquired  a  very  wide 
and  rather  indefinite  comprehension,  hut  its  elementary  and 
traditional  meaning-  is  fairly  definite.  At  the  least,  it  means 
that  a  man's  life,  or  liberty,  or  property  may  not  be  taken  from 
him  without  a  regular  trial. 

It  should  be  noted  that  the  foregoing  amendments  and  pro- 
visions are  binding  only  upon  the  Congress  of  the  United  States. 
With  the  exception  of  the  prohibition  against  depriving  the 
citizen  of  life,  liberty,  and  property  without  due  process  of 
law,  all  these  individual  guarantees  could  be  disregarded  by  the 
several  istates.  For  example,  if  the  State  of  Georgia  were  to 
pass  a  law  forbidding  Catholics  to  assemble  publicly  for  pur- 
poses of  worship,  or  denying  trial  by  jury  to  any  of  its  citizens, 
it  would  not  violate  any  of  these  provisions  of  the  Constitution 
of  the  United  States.  The  prohibitions  contained  in  these  pro- 
visions are  addressed  to  Congress,  not  to  the  several  States. 
Nevertheless,  practically  all,  if  not  literally  all,  of  the  State 
constitutions  contain  similar  guarantees  of  individual  rights 
and  similar  prohibitions  to  their  respective  legislatures  regard- 
ing interference  with  these  rights. 

The  provision  of  the  fifth  amendment  forbidding  Congress 
to  deprive  the  citizen  of  life,  liberty,  and  property,  without  due 
process  of  law,  is  repeated  in  the  fourteenth  amendment,  and 
is  there  addressed  to  the  States.  In  the  latter  amendment  the 
guarantee  reads  as  follows: 

' '  No  State  shall  make  or  enforce  any  law  which  shall  abridge 
the  privileges  or  immunities  of  citizens  of  the  United  States ;  nor 
shall  any  State  deprive  any  person  of  life,  liberty,  or  property, 
without  due  process  of  law;  nor  deny  to  any  person  within  its 
jurisdiction  the  equal  protection  of  the  laws." 

Such  are  the  principal  civil  rights  conferred  upon  and  as- 
sured to  the  citizen  by  the  organic  laws  of  our  country.  They 
include  all  the  liberty  that  anyone  can  reasonably  claim,  whether 
as  a  human  being,  or  as  a  citizen.  Inasmuch  as  they  are  matters 
of  constitutional  rather  than  statute  law,  they  cannot  be 
abolished  through  a  temporary  whim  of  the  electors  or  by  a 
simple  act  of  the  national  or  state  legislatures.     They  can  be 


THE  RIGHTS  OF  THE  CITIZEN  281 

repealed  only  by  amending  the  constitutions,  which  is  always  a 
sufficiently  slow  proce*^  to  give  time  for  the  better  judgment  of 
men  to  reassert  itself. 

The  political  rights  of  the  citizen  are  sometimes  distin- 
guished from  his  civil  rights.  The  most  important  difference 
between  them  is  that  the  former  are  intended  primarily  for  a 
public  purpose,  while  the  latter  have  as  their  immediate  end 
the  welfare  of  the  individual.  The  chief  political  rights  of 
the  citizen  are  those  of  voting  and  holding  office.  According 
to  the  fifteenth  amendment  to  the  National  Constitution,  the 
right  to  vote  "shall  not  be  denied  or  abridged  by  the  United 
States,  or  by  any  State,  on  account  of  race,  color,  or  previous 
condition  of  servitude."  It  is  true  that  this  right  has  been 
denied  to  colored  voters  in  several  of  the  states,  through  various 
devices  evading  the  fifteenth  amendment.  However,  it  should 
be  noted  that  these  evasions  do  not  amount  to  a  violation  of 
the  natural  rights  of  the  negro.  The  elective  franchise  is  not 
among  the  natural  rights  of  the  individual.  It  is  created  by 
the  State  for  a  civil  purpose.  Inasmuch  as  this  purpose  might 
conceivably  be  fulfilled,  and  in  several  States  has  been  ful- 
filled), with  the  suffrage  restricted  to  males  and  even  to  certain 
classes  of  males,  it  is  clear  that  the  power  to  vote  is  not  a  natural 
right  inherent  in  every  individual.     It  is  a  political  privilege. 


15.     CATHOLICISM  AND  AMERICANISM.^ 
By  Most  Rev.  John  Ireland,  D.D. 

My  religious  faith  is  that  of  the  Catholic  Church — Catholi- 
cism, integral  and  unalloyed' — Catholicism,  unswerving  and  soul 
swaying — the  Catholicism,  if  I  am  to  put  it  into  more  positive 
and  concrete  form,  taught  by  the  supreme  chieftain  of  the 
Catholic  Church,  the  Bishop,  the  Pope  of  Rome. 

My  civil  and  political  faith  is  that  of  the  Republic  of  the 
United  States  of  America — Americanism,  purest  and  brightest; 
yielding  in  strength  and  loyalty  to  the  Americanism  of  none 
other  American;  surpassed  in  spirit  of  obedience  and  sacrifice 
by  that  of  none  other  citizen,  none  other  soldier ;  sworn  to  uphold 
in  peace  and  in  war  America's  Star  Spangled  Banner. 

Between  my  religious  faith  and  my  civil  and  political  faith, 
between  my  creed  and  my  country,  it  has  been  said,  there  is 
discord  and  contradiction,  so  that  I  must  smother  something  of 
the  one  when  I  bid  the  other  burst  forth  into  ardent  burning, 
that  I  must  subtract  something  from  my  allegiance  to  the  one 
when  I  bend  my  full  energy  to  service  to  the  other.  Those  who 
so  speak  misunderstand  either  my  creed  or  my  country;  they 
belie  either  the  one  or  the  other.  The  accord  of  one  with  the 
other  is  the  theme  of  the  address  I  am  privileged  this  evening 
to  make. 

No  room  is  there  for  discord  or  contradiction.  Church  and 
State  cover  separate  and  distinct  zones  of  thought  and  action: 
The  Church  busies  itself  with  the  spiritual,  the  State  with  the 
temporal.  The  Church  and  the  State  are  built  for  different 
purposes,  the  Church  for  Heaven,  the  State  for  earth.     The 

*  Address  delivered  at  Milwaukee,  Wis.,  on  Aug.  11,  1913,  at  the  mass 
meeting  incidental  to  the  Twelfth  Annual  National  Convention  of  the  Fede- 
ration of  American  Catholic  Societies. 

282 


CATHOLICISM  AND  AMERICANISM  283 

line  of  demarcation  between  the  two  jurisdictions  was  traced 
by  the  unerring  finger  of  Him  who  is  the  master  of  both.  The 
law  of  God  is — ''Render  to  Csesar  the  things  that  are  Caesar's; 
and  to  God  the  things  that  are  God's." 

I  rehearse  a  vital  dogma  of  Catholic  faith  with  regard  to  the 
mutual  relations  of  Church  and  State— the  solemn  teaching  of 
a  sovereign  Pontiff,  Leo  XIII.  The  Pontiff  writes:  "God  has 
divided  the  government  of  the  human  race  between  two  prin- 
cipalities, the  ecclesiastical  and  the  civil ;  the  one  being  set  over 
the  divine,  the  other  over  human  things.  Each  is  supreme  in  its 
own  sphere ;  each  has  fixed  limits,  within  which  it  moves.  Each 
is  circumscribed  to  its  own  orbit,  within  which  it  lives  and 
works  in  its  own  native  right."  Things  civil  and  political  are 
subject,  as  reason  and  equity  demand,  to  the  civil  authority, 
Jesus  Christ  Himself  having  commanded  that  the  things  of 
Caesar  be  given  to  Cassar,  as  the  things  of  God  are  given  to  God. 
Language  could  not  be  plainer,  more  emphatic,  more  authorita- 
tive with  regard  to  the  rights  of  the  civil  power,  its  inde- 
pendence within  its  proper  zone  of  action.  The  position  of  the 
Catholic  Church,  consequently  of  Catholics,  toward  the  nation 
or  State,  is  defined  in  clearest  terms  by  the  highest  authority  of 
the  Church. 

What  is  to  be  feared  from  the  Catholic  Church?  To  priest, 
to  bishop,  or  to  Pope,  who — I  am  willing  to  consider  the 
hypothesis— should  attempt  to  rule  in  matters  civil  and  politi- 
cal, to  influence  the  citizen  beyond  the  range  of  their  own 
orbit  of  jurisdiction— that  of  the  things  of  God,  the  answer  is 
quickly  made:  "Back  to  your  own  sphere  of  rights  and  duties 
—back  to  the  things  of  God!"  Or,  in  like  manner,  should  the 
State,  or  its  officials,  in  law  or  in  act,  step  beyond  the  frontier 
of  temporal  jurisdiction  and  dare  lay  hands  upon  the  things 
spiritual  and  divine  the  answer  is:  "Beware,  touch  not  the 
things  which  God  has  reserved  to  His  duly  appointed  representa- 
tives in  the  spiritual  order. ' ' 

A  recent  proclamation  from  an  anti-Catholic  association  in 
America  reads:  "We  hold  that  no  citizen  is  a  true  patriot 
who  owes  superior  temporal  allegiance  to  any  power  above  that  of 
his  obedience  to  the  principles  of  the  Constitution  of  the  United 


284  STATE   AND   CHURCH 

States."  The  shaft  is  directed  against  a  supposed  tenet  of  the 
Catholic  Church;  it  pierces  the  vacant  air;  it  is  a  missive  of 
pitiable  ignorance. 

Is  the  issue  that  of  the  temporal  sovereignty  exercised  for  ages 
in  a  part  of  Italy  by  the  Roman  Pontiffs,  still  claimed  by  their 
successor  as  an  international  right?  But  in  the  States  of  the 
Church  the  Pontiff  was  king  as  well  as  Pontiff.  To  his  own 
kingdom  his  temporal  rule  was  strictly  limited.  Beyond  the 
frontier  of  his  own  States  he  claimed  no  civil  or  political  power ; 
none  was  allowed  him  by  the  most  Catholic  of  nations,  by  the 
most  loyal  of  Catholic  believers. 

Is  the  issue  that  of  happenings  in  ages  when  bishops  and 
popes,  the  sole  visible  tenants  of  authority  able  to  wrest  tribes 
and  peoples  from  chaos  and  anarchy,  were  compelled  by  social 
needs  and  popular  appeals  to  sit  as  civil  lawmakers  and  judges 
— when  the  crozier  and  the  tiara  were  the  sole  arms  to  stem 
the  onslaught  of  imperial  and  regal  despotism,  and  peoples  in 
despair  cried  to  them  for  mercy  and  help — or  in  ages  when 
Christendom  was  of  one  creed  in  faith  and  morals,  and  special 
gifts  of  power  were  made  to  the  Papacy,  willed  by  all  as  an 
international  arbitrator  and  peacemaker — when  special  oppor- 
tunities for  beneficent  intermingling  of  the  spiritual  and  the 
temporal  in  the  life  of  nations  were  created  for  the  Papacy, 
to  which  it  was  bound  to  give  heed,  under  penalty  of  betraying 
the  behests  of  charity  and'  of  justice,  and  turning  back  from  the 
face  of  the  earth  the  upwelling  stream  of  culture  and 
civilization  ? 

Into  past  ages  I  do  not  now  hold  the  field  glass  of  scrutiny, 
although,  were  I  to  do  so,  I  were  readily  able  to  decry  glorious 
work  done  by  the  Papacy,  and  to  the  wondering  eye  of  a  modern 
world  show  it  to  have  been  ever  the  guardian  of  personal  and 
social  rights,  ever  the  foster  mother  of  popular  liberty  and 
popular  justice,  ever  the  resplendent  mirror  of  Him  of  whom  it 
was  written:  "He  passed  by,  doing  good."  My  contention  is, 
when  and  where,  as  in  America,  a  new  social  order  has  arisen, 
within  which  the  State  or  the  nation  wills  to  live  of  its  native 
life  and  rights,  the  Church,  freed  from  burdens  imposed  upon 
it  by  social  phases  of  other  times  and  other  places,  willingly 


CATHOLICISM  AND  AMERICANISM  285 

betakes  itself  to  the  folds  of  its  own  mantle,  to  the  circle  of  its 
own  spiritual  orbit,  saying  with  its  founder  and  master:  "To 
CfiBsar  the  things  that  are  Caesar's,  to  God  the  things  that  are 
God's." 

And  now,  in  America,  some  do  say,  that  the  Pope  of  Rome  is 
ambitious  of  temporal  rule  over  America,  of  planting  here  the 
"Yellow  and  White"  instead  of  the  Star  Spangled  Banner;  that 
priests  and  bishops  are  active  agents  of  his  yearnings;  that 
Catholics  dream  of  the  day  when  his  command  in  civil  and 
political  matters  will  sway  the  White  House  and  Capitol;  that 
for  this  intent  associations  are  nightly  befitting  themselves  by 
sanguinary  oath  and  secret  drillings,  to  murder  their  fellow- 
citizens  and  in  the  name  of  a  foreign  potentate  take  forcible 
possession  of  the  land  of  the  brave  and  the  home  of  the  free! 
I  allude  to  such  wild  elucubrations  of  diseased  brains  only  to 
ask,  in  unanswered  wonderment,  how  such  follies  can  be  thought 
out  and  acted  upon,  even  by  a  handful  of  men,  in  the  twentieth 
century,  in  America?  But,  of  course,  the  insane  are  ever  with 
us,  and  all  the  insane  are  not  put  into  safe  keeping. 

The  partition  of  jurisdiction  into  the  spiritual  and  the 
temporal  is  a  principle  of  Catholicism ;  no  less  is  it  a  principle 
of  Americanism.  Catholicism  and  Americanism  are  in  complete 
agreement. 

The  Constitution  of  the  United  States  reads:  "Congress 
shall  make  no  law  respecting  an  establishment  of  religion,  or 
prohibiting  the  free  exercise  thereof."  It  was  a  great  forward 
leap  on  the  part  of  the  new  nation  towards  personal  liberty 
and  the  consecration  of  the  rights  of  conscience.  Not  so  had 
it  heretofore  been  on  the  soil  of  America.  Save  in  Maryland 
while  reigned  there  the  spirit  of  the  Catholic  Lord  Baltimore, 
and  in  Pennsylvania  under  the  sweet-tempered  rule  of  William 
Penn,  religious  freedom  was  barred  by  law  in  the  Colonies, — 
Protestant  creeds  warring  one  with  the  other,  all  warring  with 
the  Catholic.  But  it  was  decreed  that  the  new  flag  must  be 
unsullied  by  religious  persecution,  the  new  nation  must  be,  on 
every  score,  the  daughter  of  freedom,  the  guardian  angel  of 
personal  rights  in  each  and  every  American. 

The  proclamation  of  the  Constitution  was  as  the  Milanese 


286  STATE  AND   CHURCH 

edict  of  Emperor  Constantine.  Before  the  time  of  Constantine 
all  things,  even  the  things  of  God,  were  Caesar's.  The  State 
made  and  unmade  divinities;  it  was  itself  a  divinity,  its  highest 
representative,  the  Emperor,  claimed  place  among  the  Olym- 
pians, and  incense  was  burned  before  his  statue  as  before  that 
of  a  god.  The  personal  conscience  was  allowed  no  recognition. 
The  subject  must  worship  as  Caesar  ordered.  It  was  servitude 
most  absolute.  But  at  last  the  conqueror  of  the  Milvian  bridge 
spoke;  liberty  triumped  in  the  triumph  of  the  Labarum.  "We 
have  determined,  with  sound  and  upright  purpose,"  said  Con- 
stantine, ''that  liberty  is  to  be  denied  to  no  one  .  .  .  that  to 
each  one  freedom  is  to  be  given  to  devote  his  mind  to  that 
religion  which  he  may  think  adapted  to  himself."  Conscience 
was  made  free  in  the  Roman  Empire  by  the  Milanese  edict;  it 
was  made  free  in  America  by  the  Federal  Constitution.  In 
the  one  and  in  the  other,  it  is  the  injunction  of  the  Master :  "To 
Caesar  the  things  that  are  Caesar's;  to  God  the  things  that 
are  God's." 

By  the  terms  of  the  Federal  Constitution  as  by  the  teachings 
of  the  Catholic  Church,  no  room  is  given  in  America  for  discord 
between  Catholicism  and  Americanism,  between  my  Catholic 
faith  and  my  civic  and  political  allegiance. 

America  is  a  Republic ;  the  spirit,  the  form  of  government  is 
democracy — the  government  of  the  people,  by  the  people,  for 
the  people.  Is  there  not  here,  it  is  asked,  at  least  a  touch  of 
conflict  between  my  religious  faith  and  my  civic  and  political 
faith?  I  tread  upon  easy  ground,  so  plain  are  the  teachings 
of  the  Catholic  Church  in  favor  of  the  rights  of  tlie  people  in 
matters  of  civic  and  political  government.  I  again  quote  from 
the  encyclical  letters  of  Leo  XIII.  The  Pontiff  writes:  "There 
is  no  power  but  from  God.  The  right  of  command,  however, 
is  not  in  itself  linked  to  any  one  form  of  government.  One  or 
the  other  form  the  commonwealth  may  rightfully  give  to  itself, 
provided  such  be  really  promotive  of  the  common  welfare  .  .  . 
No  reason  is  there  why  the  Church  should  prefer  one  form  of 
government  to  another,  provided  the  form  that  is  chosen  be 
just  in  itself  and  favorable  to  the  common  good.  Therefore, 
the  rules  of  justice  being  duly  observed,  the  people  are  free  to 


CATHOLICISM  AND  AMERICANISM  287 

adopt  that  form  of  government  which  befits  their  temper,  or 
best  accords  with  their  traditions  and  customs."  America  de- 
clared itself  a  Republic ;  its  government  is  organized  democracy. 
In  America,  according  to  the  teachings  of  the  Catholic  Church, 
the  republic  is  the  sole  legitimate  government;  to  the  republic 
Catholics  are  in  conscience  obliged  to  yield  sincere  and 
unswerving  obedience. 

God  is  the  source  and  the  giver  of  all  power;  of  themselves 
men  have  no  authority  over  other  men.  The  authority  of  the 
parent  over  the  child  is  from  God,  who  created  nature  and  so 
fcreated  the  family;  the  authority  of  the  State  is  from  God,  who 
w^illed  that  men  should  live  within  the  fostering  embrace  of  a 
social  organism.  In  this  sense,  but  in  none  other,  a  govern- 
ment, whatever  the  form,  rules  by  divine  right.  God  gives  the 
power,  but  the  people  choose  those  that  hold  it,  and  mark  out 
the  conditions  under  which  they  do  hold  it.  This  is  supreme 
democracy ;  it  is  the  dogma  of  Catholicism. 

In  America  the  government  is  the  Republic — the  government 
of  the  people,  by  the  people,  for  the  people.  With  you,  fellow 
Catholics  with  you,  fellow  Americans,  I  salute  the  Republic. 
I  thank  God  that  the  people  of  America  are  capable  of  pos- 
sessing a  government  of  this  form.  The  Republic— it  is  the 
fullest  recognition  of  human  dignity  and  human  rights,  the 
fullest  grant  of  personal  freedom,  that  due  respect  for  the  rights 
of  others  and  the  welfare  of  the  social  organism  may  allow. 
Permit  the  barbarous  onslaughts  of  lawlessness  and  anarchy  to 
undermine  its  foundations  or  loosen  the  cement  binding  together 
its  walls !  Never,  so  long  as  life  still  throbs  within  our  bosoms, 
alter  it  to  empire  or  monarch}^  Never,  so  long  as  our  lips 
may  praise  it,  or  our  hands  wield  arms  in  its  defence. 

Would  we  alter,  if  we  could,  the  Constitution  in  regard  to 
its  treatment  of  religion,  the  principles  of  Americanism  in  re- 
gard to  religious  freedom?  I  answer  with  an  emphatic  No. 
Common  sense  is  ours.  Common  justice  is  ours;  a  regard  to 
our  own  welfare  and  safety  is  also  ours.  The  broad  fact 
is  that  the  American  people  are  divided  in  matters  of  religious 
belief.  To  the  American  people,  to  the  whole  people,  does  the 
country  belong.     What   else,   then,   could  the   framers  of  the 


288  STATE   AND   CHURCH 

Constitution  have  done,  what  else  since  their  time  could  the 
legislators  of  the  land  have  done,  in  equity  towards  all,  in  equity 
to  the  country  as  one  nation,  to  its  people  as  one  people,  but 
solemnly  decree,  as  they  did,  as  they  continue  to  do,  equal  rights 
to  all — rights  to  all,  privileges  to  none?  Necessarily  religious 
freedom  is  the  basic  life  of  America,  the  cement  running  through 
all  its  walls  and  battlements,  the  safeguard  of  its  peace  and 
prosperity.  Violate  religious  freedom  against  Catholics :  Our 
swords  are  at  once  unsheathed.  Violate  it  in  favor  of  Catholics, 
against  non-Catholics:  No  less  readily  do  they  leap  from  the 
scabbard. 

Does  Catholicism  in  America  suffer  from  religious  freedom, 
allowed  equally  to  Catholics  and  to  non-Catholics?  Compare 
the  lot  of  Catholicism  in  America  to  that  of  Catholicism  in  so 
many  trans-Atlantic  lands,  where  the  tenets  of  Pagan  Cassarism, 
as  to  the  supremacy  of  the  State  over  the  conscience  of  its 
subjects,  do  still  prevail.  There  manacles  bind  hand  and  limb 
the  bride  of  Christ :  Here  she  walks,  in  queenly  mien,  free  and 
unfettered,  putting  forth,  without  let  or  hindrance,  the  full 
exuberance  of  her  native  force  and  beauty,  proving  at  every 
stepping  that  her  life  is  all  her  own,  since  she  lives  it  without 
outward  help  or  prop;  that  her  blosson  and  fruit  are  all  her 
own,  since  they  spring  exclusively  from  her  bosom,  and  of  their 
own  vigor  defy  triumphantly  darkening  clouds  and  battling 
tempests. 

Had  the  Catholic  Church  not  lived  and  thriven  in  freedom, 
truth  were  not  its  armor,  grace  from  Heaven  were  not  the  come- 
liness of  its  countenance. 

They  know  us  little  who  accuse  us  of  coveting  civil  and 
political  power,  that  we  may  dim  the  splendor  of  the  fairest 
flower  in  the  garden  of  Americanism.  Our  combats,  if  com- 
bats there  be,  are  never  against  the  liberties  of  America,  but 
in  defense  of  them;  never  against  Americanism,  but  against 
such  of  its  sons  whose  souls  never  yet  have  thrilled  in  full 
response  to  its  teachings  and  inspirations. 

The  charge  is  made,  if  not  anti-American,  the  Catholic  Church 
is  un-American — it  is  in  America  an  alien  institution.  More 
definitely  the  charge  is  this:    The  Catholic  Church  does  not 


CATHOLICISM  AND  AMERICANISM  289 

bear  the  stamp,  "Made  in  America."  It  is  un-American  to  go 
across  the  Atlantic  or  the  Pacific  for  aught  that  America  uses 
or  needs,  even  for  its  religion.  Now  the  head  of  the  Catholic 
Church  is  the  Bishop  of  Rome,  a  foreigner ;  its  general  councils, 
composed  of  men  of  all  nations  are  foreigners  in  the  majority; 
Europeans,  Asiatics,  Africans,  legislate  in  faith  and  morals  for 
America.  Why  not  a  Pope  strictly  American  ?  Why  not  coun- 
cils, as  those  of  other  religious  bodies,  exclusively  made  up  of 
Americans^ — capable,  as  only  Americans  may  be  supposed  to 
be,  of  interpreting  the  American  mind  and  guiding  the  American 
aspiration  ? 

The  late  Bishop  Doane  of  Albany  once  wrote:  "It  is  hard  to 
find  any  other  word  (than  that  of  'alien')  which  describes  the 
whole  communion  of  a  Church  which  owes  its  highest  allegiance 
to  a  single  head,  who  is  a  foreigner  across  the  sea."  A  few 
weeks  ago,  in  the  Yale  Review,  the  secretary-general  of  the  uni- 
versity while  treating  of  what  he  is  willing  to  call  the  helpful  in- 
fluence of  the  Catholic  Church  over  recently  arrived  immigrants, 
complains:  "But  it  [the  Catholic  Church]  links  them  [the 
immigrants]  with  their  past  rather  than  with  that  of  the  United 
States.  It  has  been  outside  the  main  currents  of  the  Anglo- 
Saxon  progress.  Its  emphasis  is  neither  on  freedom  nor  on 
democracy;  so  unless  it  proves  untrue  to  its  own  ideal  it  will 
not  satisfy  the  American  people."  To  Bishop  Doane,  Catholi- 
cism is  "an  alien"  in  America,  objectionable  to  Americams,  be- 
cause its  sovereign  Pontiff  is  not  an  American,  living  in  America. 
Anson  Phelps  is  sure  that  Catholicism,  to  satisfy  Americans, 
should  have  been  woven  in  a  loom-room  even  of  Anglo- American- 
ism. In  the  June  number  of  the  Atlantic  Monthly,  a  writer 
heads  his  article  with  this  caption:  "Reasonable  Hopes  of 
American  Religion,"  and  actually  delineates  a  creed  suitable 
in  his  judgment  to  the  people  of  America. 

Faith  and  morals  made  in  America  on  a  design  strictly 
American !  Great  and  good  as  is  America,  it  must  not  arrogate 
to  itself  the  realm  of  the  Almighty  God,  that  of  faith  and  morals. 
Shall  we  call  the  Almighty  God  a  foreigner?  Yet  He  is  not 
exclusively  the  God  of  America.  Shall  we  call  the  Saviour  of 
Calvary  a  foreigner  ?    Yet  He  was  neither  a  native  nor  a  natural- 


290  STATE   AND   CHURCH 

ized  American,  and  His  mes'sage  was:  "Teach  all  nations" — 
instead  of  teach  only  America !  And  now  shall  we  call  the 
Bishop  of  Rome  a  foreigner,  "an  alien,"  because  he  stands 
before  the  world  the  universal  teacher,  the  Vicar  of  Jesus  Christ, 
teacher  of  all  nations,  teacher  of  the  whole  human  family? 

Argue  that  the  Almighty  God  is  not  the  supreme  author  and 
norm  of  an  eternal  righteousness,  that  Jesus  Christ  is  not  the 
proven  revealer  of  the  thoughts  and  the  love  of  the  Almighty 
God,  that  the  Bishop  of  Rome  is  not  the  historic  successor  of 
Christ's  apostolate — then,  counsel,  perhaps,  an  American-made 
Church  for  Americans,  an  American-made  code  of  faith  and 
morals.  But  religion  is  not  a  product  of  the  mind  of  the  in- 
dividual man,  or  of  the  environment  within  which  he  lives; 
it  is  not  a  sheer  human  growth,  changeable  as  the  seasons  of 
the  year,  fitful  and  capricious  as  the  likes  and  dislikes  of  man 
and  of  peoples. 

Religion  is  the  mind  and  the  will  of  God,  existing  as  God 
exists,  objectively  outside  of  men  and  of  peoples,  superior  to 
all  in  men,  exacting  from  man  the  obedience  due  by  the  creature 
to  the  creator.  The  question  is  never — what  is  it  that  suits  a 
man,  or  a  people,  but  what  is  it  that  God  has  imposed  upon  men 
by  the  eternal  laws  of  His  supreme  righteousness,  or  by  the 
teachings  of  His  historic  revelations?  What  Americans  require 
is,  not  an  American-made,  but  a  God-made  religion.  And  so, 
at  the  bar  of  American  common  sense  itself,  the  proposals  of 
the  writer  of  the  Atlantic  Monthly  must  only  be — as  he  himself 
despairingly  inclines  to  term  them — "dreams  that  are  the 
shadows  of  hopes,  hopes  that  are  the  shadows  of  dreams." 

The  Catholic  Church  is  extra- American,  supra-national,  be- 
gotten for  all  nations,  not  for  America  alone ;  its  supreme  Pontiff 
is  extra-American,  supra-national — a  foreigner  on  no  spot  of 
earth's  surface,  everj^where  at  home,  as  the  spiritual  father  of 
all  tribes  and  of  all  peoples  who  seek  divine  truth  from  a 
universal  God  and  a  universal  Saviour. 

And  this,  the  beauty;  this,  the  grandeur  of  the  Catholic 
Church,  that  it  is  Catholic,  as  the  eternal  God  is  Catholic,  as 
the  salvation  given  by  Jesus  Christ  is  Catholic.  Narrowness, 
provincialism  in  religion,  in  faith  and  morals,  on  the  first  face 


CATHOLICISM  AND  AMERICANISM  291 

of  things,  is  a  perversion  of  God's  eternal  law,  and  of  the  revela- 
tion given  to  men  1,900  years  ago.  The  days  of  tribal  religions 
are  past ;  they  must  not  be  revived  in  America. 

Another  charge  of  un-Americanism — the  attitude  of  the  Catho- 
lics toward  State  schools.  My  answer  is  quickly  at  hand.  The 
State  takes  to  itself  the  task  of  instructing  the  children  of  its 
people  in  branches  of  secular  knowledge;  in  order  that  this  be 
done  the  more  efficiently  and  the  more  generally,  the  State  pays 
from  the  public  treasury  the  financial  cost  of  the  schools  opened 
under  its  patronage.  Do  Catholics  make  objection  to  the  task 
or  to  the  financial  expenditures  it  entails? 

Convinced  they  are,  as  the  most  zealous  supporters  of  State 
schools,  that  no  child,  whether  for  its  own,  or  for  the  sake  of 
the  State,  should  grow  up  without  an  adequate  share  of  secular 
knowledge;  and  convinced  no  less  are  they  that  it  is  right  and 
proper  on  the  part  of  the  State  to  disburse  its  funds  in  favor 
of  universal  secular  instruction.  What  then  our  claim?  One 
that  we  most  licitly  put  forth  on  behalf  of  America  itself — 
that  this  secular  instruction  be  given  so  that  the  religious  creed 
of  the  least  of  the  little  ones  be  not  made  to  suffer;  that  it  be 
given  so  that  the  influences  of  religion — influences,  however 
much  outside  the  direct  grant  of  the  civil  power,  still  vitally 
necessary  to  the  social  life  and  security  of  the  State  itself,  as 
they  are  to  the  spiritual  life  of  the  souls  of  its  citizens — be  not 
contaminated  or  nullified.  Not  against  State  schools,  as  such, 
do  I  raise  objection,  but  as  to  the  methods  in  which  thej^  work — 
methods  that,  whatever  the  theory,  do  in  fact  consecrate  secular- 
ism as  the  religion  of  America,  and  daily  are  thither  driving 
America  with  the  floodtide  of  a  Niagara.  Somehow,  secular 
knowledge  should  be  imparted  to  the  child  so  as  not  to  imperil 
its  faith  in  God  and  in  Christ.  Prove  to  me,  I  say,  that  this 
contention  does  not  fully  fit  into  the  Constitution  of  the  United 
States,  that  in  making  it  I  have  not  in  mind  the  welfare,  the 
salvation  of  America — prove  this  before  you  denote  me  as  un- 
American. 

A  pernicious  mistake  is  made  regarding  our  complaint  of  the 
methods  by  which  State  schools  are  conducted.  It  is,  that  Catho- 
lics are  looking  exclusively  to  themselves  and  to  their  financial 


292  STATE   AND   CHURCH 

interests.  Not  so  at  all :  We  look  to  ourselves ;  but  even  more  so, 
we  look  to  the  people  of  Amerioa,  to  the  Republic  of  America. 
We  need  not  be  much  concerned  for  ourselves.  We  have  our 
Catholic  schools;  to-morrow  we  shall  have  them  in  greater  num- 
bers, where  our  children  receive  secular  knowledge  without 
peril  to  faith  and  morals.  Nor  do  we  count  the  cost  of  main- 
taining those  schools,  in  view  of  the  priceless  protection  they 
give  to  faith  and  morals.  But  the  vast  population  around  us 
is  limited  to  schools  of  .secularism — and  in  this  way  secularism 
is  fast  becoming  the  religion  of  America.  Say  what  you  will, 
to-day,  in  America,  the  evil  is  the  decay  of  religion,  and,  in 
logical  sequence,  the  decay  of  morals.  In  both  instances  the 
cause  of  the  decay  is  the  enforced  secularis-m  of  the  State  schools. 
Others  than  Catholics,  heedful  observers  and  intelligent  think- 
ers, admit  the  evil,  admit  the  cause  and'  give  the  alarm.  I  trust 
to  the  awakening  common  sense  and  patriotism  of  the  American 
people  to  discover  the  remedy.  Meanwhile  in  telling  of  the  evil 
and  of  the  cause,  my  right  hand  on  my  conscience,  I  rank  myself 
among  truest  and  most  loyal  Americans. 

An  axiom  of  Americanism  is  "equal  rights  for  all,"  "fair 
play,"  "the  square  deal,"  as  it  has  been  termed.  That,  and 
naught  else,  is  the  demand  of  Catholics  in  America.  Catholics 
demand  their  rights — all  the  rights  guaranteel  to  American 
citizenship  by  the  letter  and  the  spirit  of  the  Constitution ;  and 
for  the  acquisition  and  the  preservation  of  tho.S'e  rights  they 
shrink  from  no  means  or  methods  allowed  by  the  Constitution 
and  the  laws  of  the  land.  Were  they  to  act  otherwise,  they  were 
the  unworthy  sons  of  America.  The  rights  of  Catholics  are  the 
rights  of  the  personal  conscience  of  the  Catholic  citizen.  It  is 
not  the  Catholic  Church  in  its  official  name  that  comes  into 
issue;  it  is  the  American  citizen,  whose  religious  faith  is  the 
faith  of  the  CathoMc  Church.  Not  to  know  one's  rights  is  low 
mindedness,  not  to  defend  them  is  cowardice.  The  true  Ameri- 
can, differing  from  us  in  religion,  would  despise  us  if  we  laid 
down  our  arms  before  bigotry  and  injustice,  and  by  so  doing 
disgraced  the  shield  of  Americanism,  ever  vowed  to  justice  and 
to  valor. 

Do  we,  however,  demand  special  privileges  not  accorded  to 


CATHOLICISM  AND  AMERICANISM  293 

other  citizens  of  America  ?  No — never — no  more  than  we  would 
allow  others  special  privileges  not  accorded  to  ourselves — less 
even  than  we  would  allow  such  privileges  to  others.  If  the 
members  of  a  Church,  or  a  religious  or  a  semi-religious  organiza- 
tion of  any  kind,  arises  in  America  calling  for  special  privileges, 
be  the  shame  of  un-Americanism  their  portion.  Such  a  conten- 
tion never  will  be  the  disgrace  of  Catholicism.  The  common 
law  of  the  land  Catholics  propose  for  themselves ;  it  is  what  they 
propose  for  others. 

Catholic  fellow-citizens,  claim  your  rights — the  rights  given 
by  the  Constitution  of  the  land,  the  American  spirit  of  fair  play, 
the  laws  of  American  citizenship.  But  in  doing  this  be  on  your 
guard,  lest  even  in  slightest  semblance  you  give  offence  to  men 
too  ready  to  take  olfence.  Be  sure  before  you  act  that  reason 
and  justice  are  with  you.  Act  always  in  calmness,  certain  always 
that,  upon  proper  presentation  of  your  case,  sooner  or  later 
America  will  deal  rightly  with  you.  Remember  that  your  com- 
plaint is  not  against  the  American  people,  but  against  individ- 
uals, or  small  classes  of  men,  who,  whatever  their  nominal 
Americanism,  are  beyond  its  sweetest  whisperings,  below  its 
rapturous  elevation  of  thought  and  sentiment. 

Of  the  American  people  this  miist  be  said^ — I  say  it  from  my 
heart,  in  full  knowledge — ^a  people  more  deeply  penetrated  with 
the  sense  of  civic  and  political  justice,  more  generous  in  con- 
cession of  rights,  where  rights  belong,  more  respectful  of  their 
every  brother,  their  every  fellow-citizen,  is  not  in  existence 
on  the  broad  surface  of  the  globe.  This  my  tribute  to  the 
American  people,  the  verdict  my  fifty  years  of  private  and 
public  commingling  compel  me  to  pronounce. 

Good  citizenship  is  the  need  of  America,  the  basis  of  its 
safety,  the  spring  of  its  hopes.  It  is  the  imperious  law  of 
Catholicism.  I  say  the  law  of  Catholicism — the  law,  conse- 
quently, of  all  who  live  in  spirit,  who  obey  its  mandates.  Those 
who  bear  the  name  of  Catholic,  but  are  faithless  to  the  injunc- 
tions of  their  religion  I  disown.  They  are  bad  citizens  despite 
their  creed,  which  with  all  the  forces  innate  in  it  makes  for 
good  citizenship.  To  the  Catholic  obedience  to  law  is  a  religious 
obligation,  binding  in  God's  name,  the  conscience  of  the  citizen. 


294  STATE  AND   CHURCH 

"Let  every  soul  be  subject  to  higher  powers;  for  there  is  no 
power  but  from  God;  and  those  that  are,  are  ordained  of  God. 
Therefore,  he  that  resist eth  the  power  resisteth  the  ordinance  of 
God.    And  they  that  resist  purchase  to  themselves  damnation." 

I  do  not  discuss  the  hypothesis  of  laws  wrong  in  morals, 
clearly  beyond  the  province  of  the  civil  power,  violations  of  the 
rights  of  the  personal  conscience.  Such  laws  were  not  ratified 
by  the  supreme  master  of  righteousness.  Personal  conscience 
is  the  ultimate  asylum  of  the  soul,  in  presence  of  civil  or  of 
ecclesiastical  authority.  Both  Americanism  and  Catholicism 
bow  to  the  sway  of  personal  conscience. 

It  is  Americanism  that  the  ballot  box  is  the  sanctuary  of  good 
citizenship — opening  its  doors  only  to  the  weal  and  honor  of  the 
country.  A  sacrilege  it  is  to  step  towards  it  with  bribe  in  hand, 
fraud  in  mind,  to  reach  towards  it  the  offering  of  selfishness, 
or  of  injustice.  None  more  careful  of  the  unstained  ballot  box 
than  the  good  Catholic,  loyal  to  the  Catholic  faith ;  America  is 
the  sole  issue  before  him — its  weal  for  honor.  Aught  else  in 
mind  or  in  heart,  he  is  a  traitor  to  his  creed,  as  he  is  a  traitor 
to  his  country. 

The  best  men  for  the  office,  whatever  the  religious  creed  of 
the  man.  To  put  a  Catholic  into  office,  merely  because  he  is  a 
Catholic,  though  otherwise  unworthy  and  incapable,  is  a  crime 
against  America,  a  sin  against  the  Almighty  God. 

In  choosing  his  candidate  the  Catholic  voter  is  the  freest  of 
the  free.  It  is  a  calumny  that  we  deeply  resent,  to  say  that  in 
civic  and  political  matters  Catholic  voters  are  under  the  influence 
of  the  Church.  Priests  and  bishops  do  not  dictate  the  politics  of 
Catholics;  if  they  strove  to  do  so  their  interference  would  be 
promptly  repulsed.  It  is  of  public  knowledge  that  the  Catholic 
vote  is  distributed  among  the  several  political  parties  of  the 
country.  To  speak  of  myself,  privately  and  publicly  as  a  citizen, 
I  give  my  allegiance  to  a  particular  political  party.  Do  I  dare 
preach  from  my  pulpit  the  tenets  of  that  party  to  the  discredit 
of  another?  Do  I  dare  allow  that,  if  heeded  at  all  by  others, 
my  choice  of  a  ballot  should  or  could  receive  other  attention 
than  that  due  to  its  civic  and  political  merit?  As  a  matter  of 
fact  legions  of  Catholic  voters  in  America  believe  me  hopelessly 


CATHOLICISM  AND  AMERICANISM  295 

wrong  in  politics.  As  a  citizen  I  may  regret  tliat  my  political 
influence  is  not  wider ;  as  a  Catholic  I  am  glad  of  the  independ- 
ence of  the  citizenship  of  America. 

There  is  in  America  no  Catholic  political  party,  nor  should 
there  be.  As  a  matter  of  course,  were  a  special  issue  raised  in 
which  rights  of  Catholics  were  menaced  the  conscience  of  Catho- 
lics were  impelled  to  defend  those  rights  on  the  ground  of 
American  fair  play  itself.     That — and  nothing  more. 

Now  and  then  I  myself  have  made  the  complaint  that  in 
America,  Catholics  are  not  represented  in  the  higher  offices  of 
the  land  proportionately  to  their  numbers.  My  words  were 
interpreted  as  if  I  had  urged  Catholics  to  take  political  control 
of  State  and  Nation  in  the  interest  of  the  Catholic  Church. 
Nothing  is  further  from  my  mind.  My  sole  contention  is  that, 
seemingly.  Catholics  are  lacking  in  legitimate  civic  ambition, 
or  in  high  civic  qualifications,  else  their  fellow-Americans  would 
have  been  more  willing  to  honor  them.  Is  this  position  not 
squarely  American — equal  rights  to  all,  provided  the  merit  be 
equal?  I  repeat  the  lesson  to  Catholics  who  now  hear  or  may 
later  hear  my  words.  For  your  own  sake,  for  the  sake  of 
America,  upward  be  your  march  in  social  and  political  ambition, 
in  ability  to  render  service  to  the  country,  in  moral  worthiness, 
in  intellectual  culture;  then  trust  yourselves  to  the  social  and 
political  justice  of  your  fellow-Americans.  Some  Catholics  there 
are  who  complain  that  hostility  to  their  religion  keeps  them  in 
the  dark  vale,  while  too  often  the  fact  is  that  their  own  short- 
comings forbid  them  to  ascend  to  the  sunlit  hills. 

Either  they  have  not  fitted  themselves  for  high  positions,  or 
they  have  been  without  the  legitimate  ambition  to  honor  them- 
selves by  giving  to  the  country  highest  and  best  service.  I 
have  said,  trust  to  the  justice  of  fair  play  of  your  fellow- 
citizens.  Should,  however,  the  particular  case  arise  where  it  is 
plain  you  are  set  aside  solely  because  you  are  Catholics,  then, 
in  the  name  of  Americanism,  protest — so  loudly  that  never  again 
will  similar  insult  be  ofifered  to  your  American  citizenship. 

I  have  told  of  the  American  Catholic  in  time  of  peace.  Shall 
I  tell  of  him  in  time  of  war?  Here  I  proffer  no  argument; 
I  relate  a  historic  occurrence.    It  was  at  Gettysburg,  fifty  years 


296  STATE   AND   CHURCH 

ago  the  second  day  of  July,  1863.  The  command  is  hurried  to 
the  Irish  Brigade  to  check  the  onrush  of  General  Anderson's 
Confederates.  The  chaplain,  the  Rev.  William  Corby,  leaps  to 
the  top  of  a  large  boulder:  "The  Catholic  Church,"  he  shouts, 
"refuses  Christian  burial  to  the  soldier  who  turns  his  back  to 
the  foe  or  deserts  his  flag, ' '  adding  that  he  is  ready  to  impart 
sacramental  absolution  to  those  who  in  their  hearts  make  a 
sincere  act  of  sorrow  for  sin.  All  are  on  their  knees;  General 
Hancock  in  his  saddle,  removes  his  hat;  the  absolution  is 
given;  the  charge  is  made;  the  Confederates  flee  backwards. 

Gettysburg  is  but  one  of  a  hundred  instances  my  tongue  could 
easily  name.  Somehow,  Catholicism  and  Americanism  com- 
mingle graciously  their  intertwinings  when  the  honor  of  the 
Star-Spangled  Banner  is  in  peril. 

As  a  religion  Catholicism  is  in  the  arena,  with  the  spiritual 
arms  forged  by  its  founder — faith,  hope,  and  charity.  It  is 
avowedly  expansive  and  propagandist.  What  else,  so  long  as 
the  divine  commission  read:  "Going,  therefore,  teach  ye  all 
nations. ' ' 

Is  America  to  be  Catholic  in  religion  ?  Fain  would  I  have  it 
90.  I  am  not,  however,  so  ignorant  of  history  and  of  present 
conditions  as  to  imagine  that  the  goal  is  within  near  reach. 
But  Catholicism  in  America,  all  consideration  given  to  ebb  and 
flow,  is  growing  apace.  I  will  not  deem  myself  in  error  when 
I  estimate  the  Catholic  population  of  the  United  States  to  be 
18,000,000,  to  which  figure  are  to  be  added  nearly  ten  other 
millions,  if  we  num^ber  all  whom  to-day  the  flag  owns  or  protects. 

Need  America  fear  the  spread  of  the  religious  creed  of  Catho- 
licism? In  reality  the  question  is  none  other  than  this:  Need 
America  fear  the  spread  of  the  Gospel  of  Christ  ?  If  the  Catholic 
Church  wins  in  the  battle  with  unbelief,  or  with  the  present 
varied  forms  of  Christianity,  it  will  only  be  because  it  demon- 
strates in  itself  the  perpetuity  of  the  Kingdom  of  Christ,  to 
which  solely  it  makes  its  appeal.  Its  doctrines,  its  life  and  action, 
must  be  those  of  Christ,  else,  as  it  should  do,  it  vanishes  from 
the  scene.  Argument  in  opposition  to  its  claim  as  the  religion 
of  Christ,  it  calmly  awaits.  Of  arguments  it  does  not  complain. 
It  only  asks  that  passion  be  absent  from  the  contest,  that  cal- 


CATHOLICISM  AND  AMERICANISM  297 

umny  and  misrepresentation  be  not  made  use  of — promising 
on  its  part  that  whatever  on  this  score  the  tactics  of  oiTenee 
other  than  those  of  truth  and  charity — the  methods  of  the 
Lord  Himself.  The  work  of  expansion,  as  done  by  the  Catholic 
Church,  will  be  the  work  of  peace  and  of  love.  No  social  dis- 
cord can  come  from  it^ — no  break  in  the  harmony  that  should 
sweeten  the  ties  binding  together  fellow-citizens  and  neighbors 
in  the  common  service  of  a  common  countrj'. 

To  the  civil  and  political  institutions  of  America  no  harm  can 
come  from  the  spread  of  Catholicism.  Yea — to  those  institutions 
Catholicism  brings  elements  most  vital  to  their  life  and  growth 
— those  of  a  positive,  authoritative  religion.  Never  does  ma- 
terialism beget  or  sustain  a  well-ordered  social  organism ;  never 
does  a  vague  uncertain  Christian  sentiment  give  to  it  strength 
and  cohesiveness.  The  Catholic  Church  puts  forth  a  clear  and 
definite  message;  it  speaks  wnth  authority.  In  its  dogmas  and 
enactments  it  is  thoroughly  social,  laying  supreme  stress  on  the 
principles  of  law  and  order,  so  necessary  to  society,  especially 
in  a  free  democracy.  It  teaches  that  disobedience  to  law  is  a  sin 
against  God;  that  society  is  from  God;  that  to  undermine  the 
foundations  of  society,  to  make  null  its  purposes  and  mission, 
is  to  resist  the  ordinance  of  God.  It  teaches  the  sanctity  and  the 
indis'solubility  of  marriage,  setting  its  whole  power  in  restraint 
of  that  terrible  plague  of  divorce,  so  ruinous  to-day  of  the  family 
hearthstone,  the  fundamental  unit  of  the  whole  social  organism. 

And  it  teaches,  most  firmly  and  most  imperiously,  those  prin- 
ciples of  moral  righteousness,  that  repress  passion  and  self- 
interest,  the  fatal  foes  of  the  social  organism;  and  it  teaches, 
also,  as  the  final  outcome  of  earth's  strugglings,  the  inspiring 
doctrine  of  hope  in  another  life  which  alone  dispels  the  pessi- 
mism of  despair,  the  ferocious  thoughts  and  acts  to  which  this 
pessimism  must  needs  give  birth.  To-day — blind  they  are  who 
do  not  see  the  awful  peril — society  is  close  to  precipice  and 
aibyss.  The  cause  is  the  decay  of  religion.  Salvation  for  the 
social  organism  is  in  the  name  and  the  power  of  the  ever  living 
God,  the  potent  agency  to  preach  God  and  uphold  His  authority 
in  the  Catholic  Church. 


298  STATE  AND   CHURCH 

I  repeat  my  profession  of  faith — my  religious  faith,  Catholi- 
cism; my  civil  and  political  faith,  Americanism. 

Some  twenty  years  ago,  on  a  memorable  occasion,  an  illusitri- 
ous  prelate,  at  that  time  the  official  representative  of  Pope  Leo 
XIII,  said  to  the  Catholics  of  America:  "The  Gospel  of  Christ 
in  one  hand,  the  Constitution  of  the  United  States  in  the  other, 
go  forth  to  work  and  to  victory."  Our  signal  of  combat!  It  is 
the  word  of  Francis  Satolli :  It  is  Catholicism  and  Americanism. 


16.     PATRIOTISM^ 

By  Most  Rev.  John  Lancaster  Spalding,  D.D. 

.  .  .  There  is  a  higher  love  than  love  of  country, — the  love 
of  truth,  the  love  of  justice,  the  love  of  righteousness;  and  he 
alone  is  a  patriot  who  is  willing  to  suffer  obloquy  and  the  loss 
of  money  and  friends,  rather  than  betray  the  cause  of  truth, 
justice,  and  righteousness,  for  only  by  being  faithful  to  this 
can  he  rightly  serve  his  country.  Moral  causes  govern  the 
standing  and  the  falling  of  States  as  of  individuals;  and/6onquer- 
ing  armies  move  forward  in  vain,  in  vain  the  fleeting  fabric  of 
trade  ia  spread,  if  a  moral  taint  within  slowly  moulder  ally  The 
national  life  is  at  fault  if  it  be  not  in  harmony  with  the  eternal 
principles  on  which  all  right  human  life  rests.  The  greatest 
and  the  noblest  men  when  they  meet  rise  into  regions  where 
all  merely  national  distinctions  are  forgotten  and  transcended. 
In  studying  the  works  of  a  philosopher,  a  poet,  or  a  man  of 
science,  we  give  little  heed  to  what  country  he  was  born  and 
lived  in,  so  eager  are  we  to  learn  the  truth  and  beauty  he  reveals, 
— truth  and  beauty,  which  are  of  no  country,  which  are  wide 
and  all-embracing  as  the  universe.  In  the  presence  of  heroic 
virtue  also,  the  national  limitations  disappear,  that  the  godlike 
man,  who  belongs  to  all  countries  and  ages,  may  stand  forth 
in  his  proper  light.  A  man  supremely  endowed  narrows  his 
mind  when  he  is  less  than  universally  human.  What  he  says 
and  does  should  make  laws  for  all, — those  diviner  laws  which 
have  their  sanction  in  the  common  sense  which  makes  the  whole 
world  akin, 

*  Excerpts  from  an  address  delivered  at  the  Creve-Coeur  Club  banquet, 
Peoria,  February  22,  1899.  Eeprinted  through  the  kindness  of  A.  C.  Mc- 
Clurg  &  Co.,  from  the  volume  entitled  "Opportunity  and  Other  Essays." 

299 


300  STATE   AND   CHURCH 

Patriotism  as  understood  by  the  ancients  is  but  a  partial  virtue. 
When  it  is  most  intense,  it  is  most  narrow  and  intolerant.  In 
Jerusalem,  in  Athens,  in  Rome,  the  city  was  the  fatherland. 
It  was  the  thought  of  Zion,  and  of  "Siloa's  brook  that  flowed  fast 
by  the  oracle  of  God";  of  the  Acropolis,  with  its  marvelous 
setting  in  the  midst  of  the  Attic  plain ;  of  the  world-mother, 
looking  from  her  seven  hills  on  the  Tiber's  tawny  wave, — that 
made  the  exiles  waste  away  with  repinings  for  home ;  and  their 
passionate  devotion  to  their  country  was  rarely  separable  from 
a  hatred  of  the  foreign  nature.  Whoever  was  not  a  citizen  was 
an  enemy  or  a  slave ;  the  captive  foe  was  treated  with  pitiless 
cruelty,  and  the  slave  had  no  rights. 

We  are  separated  from  those  ancient  patriots  less  by  the  long 
lapse  of  time  which  has  intervened  than  by  the  difference  of 
spirit  in  which  we  look  upon  and  love  our  country.  For  us 
the  man  is  more  than  the  citizen,  humanity  more  sacred  than 
nationality.  To  lead  a  man's  life,  one  must  live  for  some  one 
or  some  thing  other  than  self.  As  we  can  see  ourselves  only  in 
what  is  other,  so  we  can  find  and  love  ourselves  only  in  what 
is  other  than  ourselves.  To  escape  from  the  starved  condition 
of  the  isolated,  the  individual  is  impelled  to  identify  himself 
with  larger  unities, — with  the  family,  with  the  State,  with  man- 
kind, with  God. 

Now,  for  the  ancients  the  State  was  the  ultimate  unity  in 
which  a  man  could  find  and  feel  himself.  Hence  their  aims  and 
sympathies  were  partial  and  narrow.  Their  patriotism  was  more 
intense,  but  it  was  less  rational,  less  moral,  and  therefore  less 
enduring  and  less  beneficent  than  ours.  It  was  not  possible  for 
them  to  identify  themselves  with  the  race,  to  recognize  that  all 
men  are  made  of  one  blood,  and  that  whenever  one  suffers  in- 
justice, wrong  is  done  to  all.  But  for  us  nationality  has  ceased 
to  be  the  limit  of  individual  sympathy,  and  the  oppression  of 
peoples,  however  remote,  often  affects  us  as  though  we  ourselves 
had  been  injured ;  while  noble  words  and  heroic  deeds,  wherever 
and  by  whomever  spoken  and  done,  fill  us  with  enthusiasm  and 
gratitude. 

Many  causes,  of  which  the  Christian  religion  is  the  deepest 
and  most  far-reaching,  have  led  to  the  wider  views  and  more 


PATRIOTISM  301 

generous  appreeiativeness  of  modern  men.  In  looking  to  the 
one  heavenly  Father,  they  are  drawn  together  and  held  by  ties 
consecrated  by  faith  and  approved  by  reason.  Science,  which 
deals  with  laws  that  are  universal,  that  act  alike  upon  the 
farthest  star  and  the  grain  of  sand  at  our  feet,  on  the  race 
as  on  individuals,  promotes  this  catholicity  of  feeling  and  inter- 
est. Our  machinery,  too,  in  bringing  the  ends  of  the  world 
together,  facilitates  the  intercourse  of  the  peoples  of  the  earth 
and  thereby  weakens  their  immemorial  prejudices  and  hatreds. 
The  commercial  interdependence  of  the  nations  has  a  like  tend- 
ency ;  while  the  constantly  increasing  influence  of  woman  makes 
for  larger  sympathy  and  love.  No  great  movement  can  now  long 
remain  within  the  boundaries  of  the  nation  in  which  it  originates. 
The  questions  of  education,  of  labor,  of  the  rights  of  woman 
rouse  attention  and  discussion  in  every  civilized  country.  A 
new  discovery  or  invention  is  at  once  heralded  from  land  to 
land.  The  telegraph  and  the  printing-press  mediate  a  rapid 
and  continuous  interchange  of  thought  throughout  the  world, 
and  thus  help  to  make  us  all,  in  a  way  never  before  possible, 
citizens  of  the  world. 

At  the  present  moment  America,  if  simple  truth  may  be 
uttered  without  incurring  the  suspicion  of  conceit,  represents  the 
general  tendency  and  sentiment  of  the  modern  age  more  than 
any  other  country.  Here  the  national  feeling  is  larger  and  more 
hospitable  than  anywhere  else;  here  men  of  all  tongues  and 
races  more  easily  find  themselves  at  home  than  anywhere  else. 
No  other  country  is  so  attractive,  no  other  affords  in  such  fulne^ 
opportunity  for  self-activity  in  every  sphere  of  endeavor,  no 
other  insures  such  complete  civil  and  religious  liberty.  Nowhere 
else  is  there/^  much  freedom  from  abuses  which,  because  they 
_are  inveterate,  seem  to  be  sacred/liowhere  else  is  there  so  much 
good  will,  so  much  readiness  to  help,  so  much  general  intelli- 
gence, such  sanguine  faith  in  the  ability  of  an  enlightened 
and  religious  people,  who  govern  themselves,  to  overcome  all 
obstacles  and  to  find  a  remedy  for  whatever  mishaps  or  evils 
may  befall  them.  Here  too,  more  than  elsewhere  possibly,  men 
.feel  that  there  is  a  higher  love  than  the  love  of  country,  that 
the  citizen  can  serve  his  country  rightly  only  when  he  holds 


302  STATE  AND   CHURCH 

himself  in  vital  communion  with  the  eternal  principles  on  which 
human  life  rests,  and  by  which  it  is  nourished/^ 

The  American's  loyalty  to  his  country  is  first  of  all  loyalty  to 
truth,  to  justice,  to  humanity.  He  feels  that  its  institutions  can 
be  enduring  only  when  they  are  founded  on  religion  and  moral- 
ity. He  is  less  inspired  by  the  fortune  of  the  Republic,  its 
material  advantages  and  possibilities,  than  by  its  spiritual  sig- 
nificance and  destiny.  He  is,  indeed,  filled  with  a  sense  of  glad- 
ness when  he  beholds  it  stretch  from  ocean  to  ocean,  from  the 
Lakes  to  the  Gulf;  when  he  sees  the  northern  pine  salute  the 
southern  palm  as  a  fellow-citizen ;  when  he  looks  on  its  prairies 
teeming  with  harvests  sufficient  to  feed  the  world,  on  its  moun- 
tains and  plains  filled  with  silver  and  gold,  with  iron  and 
copper,  with  coal  and  oil. 

But  he  is  less  impressed  by  this  geographical  and  material 
greatness  and  splendor  than  by  the  intellectual  and  moral  condi- 
tions which  America  presents.  ^  Nature  is  fruitful  in  vain  where 
man  is  contemptible.  The  palace  makes  ridiculous  the  occupant 
who  is  a  beggar  in  mind  and  spirit.  To  no  purpose  is  the  country 
great,  if  the  men  are  small.  Life  is  more  than  life's  circum- 
stance, man  more  than  his  environment.  The  American  patriot, 
then,  more  than  others  seeks  grounds  for  his  love  of  country 
chiefly  in  the  world  of  man's  higher  being.  For  him  freedom, 
knowledge,  truth,  justice,  good  will,  humanity,  are  the  essential 
needs;  and  it  is  a  little  thing  that  America  offers  facilities  for 
satisfying  the  physical  and  material  wants,  if  here  the  soul  is 
starved. 

Democracy  itself  is  not  an  end,  but  a  means.  The  end  is  a 
nobler,  wiser,  stronger,  more  beneficent  kind  of  man  and  woman. 
How  shall  such  men  and  women  be  formed  except  by  opportu- 
nity,— opportunity  for  all  of  worship,  of  education,  of  culture, 
of  work  that  strengthens  and  purifies,  while  it  creates  material 
comfort  and  independence?  If  a  nobler  race  is  to  spring  forth 
in  this  new  world,  all  the  influences  that  are  active  and  potent 
in  the  national  life  must  conspire  to  form  public  opinion,  by 
which  in  the  end  we  are  all  ruled, — a  public  opinion  which  shall 
be  favorable  to  pure  religion,  to  the  best  education,  and  to  sound 
morality.     The  better  kind,  however  otherwise  they  may  dis- 


PATRIOTISM  303 

agree,  must  unite  and  support  one  another  in  ceaseless  efforts 
to  create  such  a  public  opinion.  They  must  not  merely  lead 
loyal,  hrave,  chaste,  and  helpful  lives,  but  they  must  so  live 
that  the  atmosphere  in  which  they  move  shall  receive  from  them 
a  magnetic  quality, — the  power  to  stimulate  all  who  breathe  it  to 
nobler  thoughts  and  loves,  to  a  deeper  and  more  tender  solicitude 
for  the  rights  and  needs  of  all  men,  of  women  and  children,  of 
the^ick  and  forsaken,  of  the  criminal  and  captive. 

'Goethe,  who  never  utters  a  foolish  thing,  says  that  in  time 
of  peace  patriotism  properly  consists  merely  in  this, — that  each 
j>ne  sweep  before  his  own  door,  attend  to  his  own  business,  learn 
his  own  lesson,  that  it  may  be  well  in  his  own  household  ,•  and 
what  he  says,  if  but  partial,  is  nevertheless  essential  truth.  He 
himself,  indeed,  even  in  times  of  war  and  disaster  for  the  father- 
land, seemed  to  act  on  this  principle,  and  he  has  consequently 
been  accused  by  some  of  his  own  countrymen  of  a  lack  of 
patriotism,  though  in  fact  he  did  more  to  make  possible  the 
political  union  of  Germany  than  any  other  man;  for  he  more 
than  any  other  awakened  the  self-consciousness  of  the  German 
people  and  thus  inspired  them  with  a  more  intense  longing  for 
national  unity. 

A  good  patriot  is  first  of  all  a  good'  man, — true  to  himself  and 
true  to  his  relations  to  his  fellowmen.  If  false  to  himself,  he  is 
false  to  all.  If  he  love  not  rightly  his  father  and  mother,  his 
wife  and  child,  the  neighbor  who  dwells  beside  him,  how  shall 
he  rightly  love  his  country?  If  he  respect  not  the  dignity  of 
human  nature  in  himself,  but  degrade  it  by  drunkenness  or  lying 
or  sensuality  or  dishonesty,  how  shall  he  feel  a  genuine  and 
generous  interest  in  the  common  weal,  and  earnestly  strive  to 
do  his  part  in  correcting  the  evils  and  abuses  which  impair  or 
threaten  the  national  life  and  prosperity?  It  will,  indeed,  be 
easy  for  him  to  make  his  patriotism  a  theme  for  declamation, 
and  easy,  too  to  throw  suspicion  on  the  loyalty  of  others;  but  if 
he  is  not  a  real  man,  it  is  not  possible  that  he  should  be  a  real 
lover  of  his  country. 

Whoever  deliberately  wrongs  an  American,  wrongs  America. 
The  worst  enemy  of  the  country  is  not  the  drunkard,  but  the 
buyer  of  votes,  whether  at  the  polls  or  in  council  chambers  or  in 


304  STATE  AND   CHURCH 

legislative  halls;  not  the  petty  thief,  but  the  capitalist  whose 
insatiate  greed  urges  him  on  to  crush  all  competitoTS;  not  the 
selfish  man  who  cares  not  at  all  for  the  general  good,  but  the 
politician  who  makes  his  patriotism  a  cloak  to  cover  him  while 
he  sneaks  into  public  office  which  he  prostitutes  to  private  gain ; 
not  he  who  refuses  his  assent  to  measures,  however  popular, 
unless  he  can  give  it  honestly,  but  the  demagogue  who  is  ever 
ready  to  run  and  cry  with  the  crowd;  not  the  ranting  anarchist, 
but  the  editor  who  for  money  impugns  the  known  truth.  But 
the  beef  embalmer  has  attained  the  highest  point  of  treacherous 
infamy,  beyond  which  it  is  not  possible  to  go, — he  poisons  the 
wells,  not  to  destroy  the  enemy,  but  the  soldiers  who  fight  their 
country's  battles.  -The  saloon  is  bad;  the  worst  evil,  however, 
resulting  from  it  is  not  drunkenness,  but  political  corruption ; 
for  if  just  laws  were  rightly  administered,  the  saloon  would 
cease  to  be  a  source  of  degradation  and  ruin^ 

Our  civilization  is  still  incomplete;  it  is,  as  Emerson  says, 
"a  wild  democr^y;  the  riot  of  mediocrities  and  dishonesties 
and  fudges."  Af  numbers  were  enough,  if  wealth  were  enough, 
if  machinery  were  enough,  to  constitute  a  great  people,  for  us 
the  question  would  be  settled,  but  the  kind  of  man,  not  numbers^ 
or  wealth  or  machinery,  is  what  we  have  to  consider,  and  it  is 

/a.  favorable  omen  that  we  are  not  self-complacent,  that  our  de- 
fects and  faults  are  not  hidden  from  usy  We  suffer  from  the 
absence  of  the  discipline  of  respect,  from  a  certain  hardness 
and  materialism,  from  a  fondness  for  exaggeration,  and  from 
boastfulness.  The  fear  of  demos  and  the  demagogue  prevents 
us  from  speaking  the  simple  and  salutary  language  of  truth 
whejj  far-reaching  and  vital  issues  are  in  question. 
'^e  are  so  accustomed  to  bow  to  the  will  of  majorities  that  we 
easily  forget  that  votes  count  for  nothing  when  we  have  to 
consider  what  is  true  and  wise  and  just^  Here  there  is  every 
likelihood  that  the  minority  is  right  and  the  majority  wrong. 

/The  multitude  everywhere  and  in  all  ages  are  dominated  by 
the  present.  They  are  unwilling  to  wait,  unwilling  to  deny  them- 
selves now  that  they  may  become  capable  of  higher  things  here- 
after. The  success  of  a  day  robs  them  of  the  glory  of  a  life- 
time^'  They  are  fickle  because,  since  they  see  only  what  is  im- 


PATRIOTISM  305 

mediately  before  them,  their  opinions  change  as  the  road  turns. 
They  are  selfish  because  they  are  shortsighted  and  but  feebly 
influenced  by  large  ideas  and  generous  aims.  Being  a  crowd, 
they  are  easily  hypnotized,  and  are  quickly  hurried  from  one 
extreme  to  another.  They  follow  the  cry  of  chance  leaders, 
and,  being  little  able  to  think  for  themselves,  they  resent  inde- 
pendence of  thought  in  those  things  precisely  in  which  such 
thought  is  most  needed;  for  in  the  deepest  and  most  critical 
questions  concerning  the  national  life  and  policy  what  is  popular 
is  rarely  what  is  most  wise.  The  voice  of  the  most  serious  minds 
is  not  only  not  heeded,  it  is  drowned  in  the  clamor  and  vitupera- 
tion of  those  who  are  themselves  led  by  men  who  know  little, 
and  who  have  at  heart  chiefly  their  own  popularity  and  profit, 
y^  false  opinion  is  created,  and  we  are  commanded  to  accept 
it  without  question  as  the  will  of  the  people ;  and  our  highest 
officials,  when  they  yield  to  the  outcry  of  the  mob,  are  com- 
mended for  their  wisdom  and  patriotism.  Our  best  minds  do  not 
guide  us;  our  best  men  do  not  govern  us./ 

By  faithful  adherence  to  the  principles  with  which  our 
national  life  began,  we  have  grown  to  be  a  prosperous  and 
mighty  people.  We  have  been  taught  to  cherish  these  principles 
as  being  scarcely  less  sacred  than  our  religion.  Our  climate  is 
healthful,  our  soil  fertile,  our  territory  large  as  all  Europe. 
Our  industry,  intelligence,  and  mechanical  skill  have  in  the 
brief  space  of  a  century  made  us  the  richest  of  the  nations,  while 
the  growth  of  our  population  has  been  phenomenal.  If  success 
is  an  argument  for  continuing  in  a  given  line  of  policy  and 
conduct,  no  pecmle  ever  had  so  good  a  reason  for  following  in 
the  old  way.  /Uur  success  has  been  marvelous,  but,  after  all, 
it  is  still  only  the  success  of  an  experiment.  It  has  not  yet  been 
proved  that  a  stable  and  enduring  civilization  can  be  built  on  a 
democracy  such  as  ours./  We  occupy  a  continent  stretching  east 
and  west,  and  south, 'for  thousands  of  miles.  It  is  not  easy 
to  reconcile  the  interests  of  regions  lying  so  remote  from  one 
another.  Our  population  is  composed  not  only  of  intergeneous 
elements  from  Europe,  but  also  of  a  large  and  increasing  and 
but  partially  assimilated  body  of  Africans. 

While  our  material  progress  has  been  great,  our  love  of  prin- 


306  STATE   AND   CHURCH 

ciple  and  our  strength  of  moral  conviction  seem  to  have  grown 
feebler.  More  and  more  we  are  dominated  by  greed ;  more  and 
more  we  become  reckless  of  the  means  by  which  money  is  ob- 
tained. /Vast  fortunes  are  quickly  heaped  up,  but  those  who 
toil  are  little  benefited./  Our  political  and  commercial  life  is 
undermined  by  dishonesty,  and  we  are  becoming  ho  callous  or 
so  reckless  that  abuses  which  endanger  our  very  existence  as  a 
nation  give  us  little  concern.    .    .    . 

Here,  at  our  hands,  lies  the  tasik  God  sets  us.  It  is  the  develop- 
ment of  our  inner  life,  the  enriching  of  our  minds,  the  purifica- 
tion of  our  hearts,  the  education  of  ourselves  through  liberty 
and  labor,  the  reform  of  our  politics,  the  rooting  out  of  cant, 
lymg,  vulgaritj^  greed,  and  dishonesty,  of  drunkenness  and  lust ; 
/fne  correcting  of  our  extravagant  estimate  of  the  value  of  what 
is  merely  matter  of  life's  accompaniments  as  distinguished  from 
life  itself,  which  is  thought  and  love,  strength  and  courage, 
patience  and  forbearanc^/"We  have  to  learn  that  what  makes 
a  millionaire  spoils  a  man ;  that  a  people  who  think  trade  and 
commerce  the  one  thing  needful  have  no  permanent  place  in 
history,  because  they  have  no  influence  on  the  spiritual,  which 
is  the  real  life  of  man.  The  people  who  are  the  "bearers  of  the 
largest  thought,  the  deepest  love,  the  holiest  faith,  live  and  work 
forever  in  the  race,  while  merchants  and  traders  perish  and  are 
forgotten,  like  the  wares  they  deal  in.  See  how  quickly  elated 
and  how  quickly  cast  down  are  they  w'hose  hope  is  in  riches, — 
for  riches  are  akin  to  fear,  to  change  and  death ;  while  they  who 
live  for  truth  and  righteousness  move  forward,  serene  and  un- 
afraid, upborne  by  the  unseen  powers ;  for  truth  and  righteous- 
ness are  life.  Beggars  and  outcasts,  if  but  some  divine  thought 
or  immortal  hope  upwelled  within,  have  survived  the  fall  of 
empires,  the  ruin  of  civilizations,  and  the  utter  vanishment  of 
the  people  from  whom  they  sprang.  We  have  to  learn  to  know 
how  to  be  happy  and  noble,  for,  as  Ruskin  says,  till  we  have 
learned  how  to  be  happy  and  noble,  we  have  not  much  to  tell, 
even  to  Red  Indians;  and  he  goes  on :  "To  watch  the  corn  grow, 
and  the  blossoms  set;  to  draw  hard  breath  over  ploughshare  or 
spade;  to  read,  to  think,  to  love,  to  hope,  to  pray, — these  are 
the  things  that  make  men  happy.    .    .    .    The  world 's  prosperity 


PATRIOTISM  307 

or  adversity  depends  upon  our  knowing  and  teaching  these  few 
things;  but  upon  iron  or  glass  or  electricity  or  steam,  in  no 
wise. ' ' 

The  Absolute,  the  Highest,  is  a  Person,  and  the  civilization 
which  issues  in  the  noblest  personalities  is  the  best.  By  them 
we  estimate  the  worth  of  our  nature,  by  them  the  value  of  our 
political  and  religious  institutions.  But  noble  men  and  women 
do  not  spring  forth  in  isolation.  As  an  individual,  man  is  in- 
significant; in  fact,  he  cannot  become  human  at  all,  except  in 
a  social  environment, — in  a  medium  in  which  he  is  made  par- 
taker of  the  life  of  the  race,  receiving  the  thoughts,  hopes, 
and  beliefs,  the  aimsi,  aspirations,  and  ideals,  which  are  the  food 
of  the  spirh  of  man,  of  that  which  places  him  in  opposition  to 
nature  and  lifts  him  above  its  fatal  laws.  It  is  the  patriot's 
business  to  strengthen  and  purify  the  institutions  by  which  the 
citizen  is  educated, — the  family,  the  Church,  the  State.  To 
whom  the  life  of  the  home  is  not  sacred,  nothing  is  sacred.  The 
child  that  does  not  drink  pure  love  and  religion  from  this 
fountain-head  can  never  be  rightly  educated,  /ft  is  in  vain 
that  we  build  churches  and  schools,  if  the  home  does  not  fill 
them  with  teachable  hearts  and  minds^lt  is  here  that  each 
one  receives  his  better  self, — the  self  which  makes  him  conscious 
that  he  is  a  center  toward  which  infinities  converge,  where  truth 
and  justice  and  love  are  felt  to  be  the  real  and  permanent  good. 
What  burns  in  the  hearts  of  the  fathers  will  glow  in  the  breasts 
of  the  children.  Patriotism,  like  charity,  begins  at  home.  It 
is  not  a  philosophy ;  it  is  a  sentiment,  inspired,  above  all,  by  the 
mothers  of  a  people,  from  whom  also  we  receive  religion  and 
morality.  Washington  calls  these  the  indispensable  supports 
of  political  prosperity,  and  therefore  he  refuses  to  give  the  title 
of  patriot  to  those  who  "labor  to  subvert  these  great  pillars  of 
human  happiness,  these  firmest  props  of  the  duties  of  men 
and  citizens." 

The  end  of  all  worthy  struggles  is  to  establish  morality  as  the 
basis  of  individual  and  national  life,  and  morality  can  be  firmly 
founded  only  on  pure  religion.  To  make  righteousness  prevail, 
to  make  justice  reign;  to  spread  beauty,  gentleness,  wisdom,  and 
peace;  to  widen  opportunity,  to  increase  good  will,  to  move  in 


308  STATE   AND   CHURCH 

the  light  of  higher  thoughts  and  larger  hopes,  to  encourage 
science  and  art,  to  foster  industry  and  thrift,  education  and 
culture,  reverence  and  obedience,  purity  and  love,  honesty, 
sobriety,  and  the  disinterested  devotion  to  the  common  good, — 
this  is  the  patriot's  aim,  this  his  ideal.  And  if  even  a  minority, 
a  remnant,  work  in  this  spirit  and  strive  with  this  purpose, 
the  star  of  the  Republic,  which  rose  to  herald  the  dawn  of  a 
new  and  better  era,  shall  not  throw  its  parting  rays  on  the  ruins 
of  an  empire  stained  with  blood. 


17.     ENCYCLICAL     ON     INTERNATIONAL 
RECONCILIATION 

By  Pope  Benedict  XV 

Peace,  the  great  gift  of  God,  than  which,  in  St.  Augustine's 
words,  there  is  no  happier  thing  among  men,  nothing  more 
desirable  or  better;  peace,  which  all  good  people  have  implored 
for  more  than  four  years,  with  the  prayers  of  the  faithful  and 
the  tears  of  mothers,  has  finally  begun  to  shine  among  the  peo- 
ples, and  We  are  among  the  first  to  rejoice  at  it.  But  still  too 
many  and  too  bitter  anxieties  disturb  this  Our  paternal  joy, 
for  if  almost  everywhere  the  war  has  in  a  way  come  to  an  end, 
and  several  treaties  of  peace  have  been  signed,  nevertheless  the 
germs  of  old  bitterness  remain  and  you  know  well.  Venerable 
Brethren,  that  no  peace  can  have  consistency,  no  alliance  can 
have  strength,  though  elaborated  in  daily  laborious  conferences 
and  solemnly  sanctioned,  if  at  the  same  time  hatreds  and  en- 
mities are  not  quenched  by  means  of  a  reconciliation  based  on 
mutual  charity. 

It  is  on  this  consideration,  which  is  full  of  anxiety  and  dangers, 
that  We  wish  to  dwell,  Venerable  Brethren,  that  at  the  same  time 
the  peoples  entrusted  to  your  care  may  have  it  brought  home 
to  them. 

In  truth,  ever  since  by  the  hidden  designs  of  God  We  were 
raised  to  the  See  of  Peter,  we  have  never  ceased  to  do  every- 
thing in  Our  power,  from  the  very  beginning  of  the  war,  that  all 
the  nations  of  the  world  might  resume  cordial  relations  among 
themselves.  To  that  end  We  never  ceased  to  pray,  to  repeat 
exhortations,  to  propose  ways  of  arrangement,  to  try  every 
means,  in  fact,  to  open,  by  Divine  aid,  a  door  of  some  sort  to  a 
peace  that  might  be  just,  honorable,  and  lasting;  and  at  the 
same  time  We  exercised  all  Our  paternal  care  to  alleviate  every- 

309 


310  STATE  AND   CHURCH 

where  that  terrible  load  of  sorrow  and  disaster  of  every  sort 
accomrpanying  the  immense  tragedy. 

And  now,  just  as  from  the  beginning  of  Our  troubled  Pontifi" 
cate,  the  charity  of  Jesus  Christ  led  Us  to  work  both  for  the 
return  of  peace  and  to  alleviate  the  horrors  of  the  war,  so  now 
that  a  certain  peace  has  been  finally  concluded,  it  is  this  same 
charity  which  urges  Us  to  exhort  all  the  children  of  the  Church, 
or  better,  all  men  in  the  world,  that  they  may  put  aside  the  old 
bitterness  and  give  place  to  mutual  love  and  concord. 

There  is  no  need  for  Us  to  dwell  long  on  showing  how  human- 
ity is  incurring  the  risk  of  terrible  disasters  if,  while  peace 
indeed  is  concluded,  latent  hostility  and  enmity  among  the 
peoples  continue.  No  need  to  dwell  on  the  harm  to  all  that  is 
fruit  of  civilization  and  progress,  to  commerce  and  industry, 
literature  and  the  arts,  all  of  which  flourish  only  when  the 
peoples  live  together  in  tranquillity. 

But  more  important  still — grave  harm  would  be  done  to  the 
very  life  of  Christianity,  which  is  essentially  based  on  charity, 
being  called  the  very  preaching  of  the  law  of  Christ,  "  the  Gospel 
of  peace." 

Indeed,  as  you  well  know  and  as  We  have  often  called  to  mind, 
nothing  was  so  often  and  so  insistently  taught  by  the  Divine 
Master  to  His  disciples  as  this  precept  of  fraternal  charity  as 
the  one  which  includes  all  the  others  in  itself ;  and  Our  Lord 
called  that  precept  new  and  His  own,  desiring  that  it  should  be 
as  the  hall  mark  of  the  Christians  by  which  they  might  easily 
be  distinguished  from  all  others. 

No  other,  indeed,  was  the  testament  that  He  left  to  His  fol- 
lowers when  He  died,  praying  them  to  love  one  another,  and 
loving  one  another  try  to  imitate  the  ineffable  unity  that  exists 
between  the  Persons  of  the  Holy  Trinity:  ''That  they  may  be 
one  as  we  also  are  one  that  they  be  made  perfect  in  one." 

And  the  Apostles,  following  the  order  of  the  Divine  Master 
and  taught  by  His  very  voice,  were  unceasing  in  their  exhorta- 
tion to  the  faithful:  ''But  before  all  things  have  a  constant 
mutual  charity  among  yourselves";  "And  above  all  these  things 
have  charity  which  is  the  bond  of  perfection";  "Dearly  beloved, 
let  us  love  one  another  for  charity  is  of  God." 


INTERNATIONAL  RECONCILIATION  311 

The  teaching  of  Jesus  Christ  and  of  the  Apostles  was  faith- 
fully observed  by  Our  brethren  of  the  old  times  who  belonged 
indeed  to  different  nations,  often  at  war  among  themselves,  but 
who  nevertheless  wiped  out  the  record  of  past  differences  in 
voluntary  oblivion  and  lived  in  perfect  concord. 

And  indeed  there  was  marked  contrast  between  such  intimate 
union  of  minds  and  hearts  and  the  deadly  hostilities  that  then 
broke  out  among  the  nations. 

What  has  already  been  said  to  teach  the  precept  of  charity 
holds  good  for  the  pardoning  of  offenses,  no  less  solemnly  com- 
manded by  the  Lord:  "But  I  say  to  you,  love  your  enemies; 
do  good  to  them  that  hate  you,  and  pray  for  them  that  persecute 
and  calumniate  you,  that  you  may  be  the  children  of  your 
Father  who  is  in  Heaven,  who  maketh  His  sun  to  rise  upon  the 
good  and  bad."  Hence  that  terribly  severe  warning  of  the 
Apostle  St.  John :  ' '  Whosoever  hateth  his  brother  is  a  murderer 
and  you  know  that  no  murderer  hath  eternal  life  abiding  in 
himself. ' ' 

Finally,  Jesus  Christ  has  taught  us  to  pray  the  Lord  so  that 
we  ask  for  forgiveness  on  condition  of  forgiving  others:  "And 
forgive  us  our  debts  as  we  also  forgive  our  debtors."  And  if 
sometimes  the  observance  of  this  law  seems  too  severe  and  diffi- 
cult, the  Redeemer  of  the  human  race  Himself  assists  us  not 
only  with  the  Divine  Grace  but  also  by  His  admirable  example, 
for  as  He  hung  on  the  cross  He  prayed  pardon  of  His  Father 
for  those  who  so  unjustly  and  wickedly  tortured  Him :  ' '  Father, 
forgive  them,  for  they  know  not  what  they  do." 

We  too  should  be  the  first  to  imitate  the  pity  and  loving 
kindness  of  Jesus  Christ,  whose  Vicar  We  are  here,  though  with- 
out any  merit  of  Our  own;  with  all  Our  heart,  following  His 
example.  We  forgive  all  and  every  one  of  Our  enemies  who 
knowingly  or  unknowingly  have  heaped  and  are  still  heaping 
on  Our  person  and  Our  work  every  sort  of  vituperation,  and  We 
embrace  all  with  supreme  charity  and  benevolence,  neglecting 
no  opportunity  to  do  them  all  the  good  in  Our  power;  and  that 
is  indeed  what  Christians  really  worthy  of  the  name  are  bound 
to  do  towards  those  from  whom  they  have  received  offenses 
during  the  war. 


312  STATE  AND   CHURCH 

Christian  charity  in  fact  is  not  confined  to  not  hating  our  en- 
emies and  loving  them  as  brothers ;  it  desires  also  that  we  do  good 
to  them,  following  the  rule  of  the  Divine  Master  who  "went  about 
doing  good  and  healing  all  that  were  oppressed  by  the  Devil," 
and  ran  the  course  of  His  mortal  life  giving  it  all  up  to  doing 
untold  good  to  men,  even  shedding  His  blood  for  them.  So 
said  St.  John:  "In  this  we  have  known  the  charity  of  God, 
because  He  hath  laid  down  His  life  for  us,  and  we  ought  to  lay 
down  our  lives  for  the  brethren.  He  that  hath  the  substance 
of  this  world  and  shall  see  his  brother  in  need  and  shall  shut  up 
his  bowels  from  him,  how  doth  the  charity  of  God  abide  in 
him?  My  little  children,  let  us  not  love  in  word  nor  in  tongue, 
but  in  deed  and  in  truth." 

Never  indeed  was  there  a  time  when  we  should  "spread  the 
limits  of  charity"  more  than  in  these  days  of  universal  suf- 
fering and  sorrow ;  never  perhaps  as  to-day  has  humanity 
needed  that  common  beneficence  which  grows  from  sincere  love 
of  our  neighbor  and  is  full  of  sacrifice  and  fervor.  For  if  we 
look  anywhere  where  the  fury  of  the  war  has  passed  we  see  im- 
mense regions  utterly  desolate  and  squalid ;  multitudes  reduced 
to  such  extremes  as  to  be  without  bread,  clothing,  and  shelter; 
innumerable  widows  and  orphans  awaiting  help  from  someone; 
and  lastly  a  great  crowdl  of  enfeebled  beings,  particularly 
infants  and  children,  whose  malformed  bodies  bear  witness  to 
the  atrocity  of  the  war. 

To  the  mind  of  anyone  who  sees  this  picture  of  misery  by 
which  the  human  race  is  oppressed  there  must  come  back  at 
once  the  story  of  the  Gospel  traveler  who  was  journeying  from 
Jerusalem  to  Jericho  and  fell  among  thieves  who  robbed  him 
and  covered  him  with  wounds  and  left  him  half  dead  by  the  way- 
side. The  two  cases  are  very  much  alike;  as  to  the  traveler 
there  came  the  good  Samaritan,  full  of  compassion,  who  bandaged 
his  wounds,  pouring  oil  and  wine  over  them,  took  him  to  the 
inn  and  undertook  all  care  of  him,  and  so,  to  cure  the  wounds 
of  the  human  race  the  hand  of  Christ  Jesus  is  needed,  of  whom 
the  Samaritan  was  figure  and  image. 

That  indeed  is  the  work  which  the  Church  takes  upon  itself 
aa  heir  and  guardian  of  the  spirit  of  Jesus  Christ — the  Church 


INTERNATIONAL  RECONCILIATION  313 

whose  entire  existence  is  a  marvelously  varied  network  of  good 
deeds,  the  Church  "that  real  mother  of  Christians  which  has 
such  tenderness  of  love  for  its  neighbor  that  for  every  one  of 
the  different  evils  which  trouble  the  soul  with  sin  it  has  ready 
every  kind  of  medicine"  and  so  "treats  and  guides  children  as 
children,  young  men  with  courage  and  strength,  old  people  with 
quiet  calm,  as  each  has  his  condition  not  only  in  body  but  in 
soul."  And  all  this  many-sided  Christian  beneficence,  by 
sweetening  the  spirit,  has  wonderful  effect  in  restoring  tran- 
quillity to  the  peoples. 

Therefore  We  pray  you,  Venerable  Brethren,  and  We  exhort 
you  in  the  bowels  of  charity  of  Jesus  Christ,  do  everything  in 
your  power,  not  only  to  urge  the  faithful  entrusted  to  you  to 
lay  aside  hatred  and  pardon  offenses,  but  also  to  promote  more 
actively  all  those  works  of  Christian  benevolence  which  bring 
aid  to  the  needy,  comfort  to  the  afflicted,  protection  to  the 
weak,  opportune  assistance,  in  fact,  of  every  kind  to  all  who  have 
suffered  most  gravely  through  the  war.  We  wish  that  you 
should  specially  exhort  your  priests,  as  ministers  of  peace,  to 
be  assiduous  in  this  work,  which  is  indeed  the  very  compendium 
of  the  Christian  life,  in  preaching  love  towards  one's  neigh- 
bors, even  if  enemies,  and  being  "all  things  to  all  men."  So  as 
to  afford  a  shining  example,  let  them  wage  war  everj^where 
on  enmity  and  hatred,  knowing  well  that  in  doing  so  they  are 
doing  a  thing  very  welcome  to  the  most  loving  Heart  of  Jesus 
and  to  him  who,  however  unworthy,  is  His  Vicar  here  on  earth. 
And  in  this  connection  also  they  should  exhort  and  pray 
Catholic  journalists  and  writers  in  that  "as  elect  of  God,  holy 
and  beloved,"  they  may  clothe  themselves  in  "the  bowels  of 
mercy  and  benignity,"  expressing  it  in  their  writings,  abstain- 
ing not  onlj^  from  false  and  empty  accusations  but  also  from  all 
intemperance  and  bitterness  of  language  which  is  contrary  to 
the  law  of  Christ  and  does  no  more  than  reopen  sores  as  yet 
unhealed,  especially  in  that  men  who  are  suffering  bitterly 
from  recent  wounds  find  it  difficult  to  endure  even  the  lightest 
injury. 

All  that  We  have  said  here  to  individuals  about  their  duty  of 
practicing  charity  We  wish  to  apply  also  to  those  peoples  who 


314  STATE   AND   CHURCH 

have  fought  the  great  war,  in  order  that,  when  every  cause 
of  disagreement  has  been  removed  as  far  as  possible,  and  sav- 
ing of  course  reasons  of  justice,  they  may  resume  friendly  re- 
lations among  themselves.  For  the  Evangelic  law  of  charity 
is  the  same  between  individuals  as  between  States  and  Nations, 
which  are  indeed  but  collections  of  individuals.  From  the 
moment  that  the  war  ended,  both  from  motives  of  charity  and 
also  through  a  certain  necessity  of  things,  there  has  begun  a 
universal  drawing  together  of  the  peoples,  moved  to  unite  by 
their  mutual  needs  as  well  as  by  reciprocal  benevolence,  which 
is  more  marked  now  that  civilization  is  so  extended  and  means 
of  communication  so  marvelously  increased. 

Truly,  as  We  have  already  said,  this  Apostolic  See  has  never 
wearied  of  teaching  during  the  war  such  pardon  of  offenses  and 
the  fraternal  reconciliation  of  the  peoples,  in  conformity  with 
the  most  holy  law  of  Jesus  Christ  and  in  agreement  with  the 
needs  of  humanity ;  nor  did  it  allow  that  these  moral  principles 
should  be  forgotten,  even  in  the  clash  of  dissension  and  hatred. 
And  now,  after  the  treaties  of  peace,  it  puts  forward  these 
principles  and  proclaims  them  even  more  strongly,  as  indeed 
it  did  a  short  time  ago  in  the  letter  to  the  Bishops  of  Germany 
and  in  the  letter  addressed  to  the  Archbishop  of  Paris.  And 
inasmuch  as  one  very  useful  means  of  maintaining  and  increas- 
ing this  concord  among  the  peoples  is  found  in  the  visits  which 
the  heads  of  States  and  Governments  are  accustomed  to  exchange 
to  consult  on  matters  of  special  importance,  considering  the 
changed  circumstances  of  the  times  and  the  dangerous  trend 
of  events,  in  order  to  co-operate  in  this  brotherhood  of  the 
peoples  We  are  willing  to  mitigate  in  some  measure  the  severity 
of  the  conditions  which  were  justly  laid  down  by  Our  predeces- 
sors, when  the  civil  power  of  the  Holy  See  was  destroyed,  to 
exclude  visits  to  Rome  of  Catholic  Princes  in  official  form. 

But  at  the  same  time  We  solemnly  proclaim  that  this  conces- 
sion, determined,  or  rather  willed,  as  is  seen,  on  account  of 
the  seriousness  of  the  present  times,  must  not  be  interpreted 
as  a  tacit  renunciation  of  sacrosanct  rights  as  if  the  Holy  See 
were  satisfied  with  the  abnormal  condition  in  which  it  is  now 
placed.      Indeed    the    protests    which    Our    predecessors    have 


INTERNATIONAL  RECONCILIATION  315 

several  times  made,  not  in  the  least  moved  thereto  by  human 
interests  but  by  the  sanctity  of  duty,  to  defend  the  dignity  and 
righta  of  this  Apostolic  See,  We  on  this  occasion  renew  for  the 
very  same  reasons,  claiming  once  again  and  with  even  greater 
insistence  that  now  that  peace  is  made  among  the  nations  **for 
the  Head  of  the  Church  too  an  end  may  be  put  to  that  abnormal 
condition  which  does  serious  harm,  for  many  reasons,  to  that 
very  tranquillity  of  the  peoples." 

Things  being  thus  restored  in  the  order  desired  by  justice 
and  charity,  and  the  peoples  reconciled  among  themselves,  it 
would  be  truly  desirable,  Venerable  Brethren,  that  all  States 
should  put  aside  mutual  suspicion  and  unite  in  one  sole  society 
or  rather  family  of  peoples,  both  to  guarantee  their  own  inde- 
pendence and  safeguard  order  in  the  civil  concert  of  the  peoples. 
A  special  reason,  not  to  mention  others,  for  forming  this  society 
among  the  nations,  is  the  need  generally  recognized  of  reducing, 
if  it  is  not  possible  to  abolish  it  entirely,  the  enormous  military 
expenditure  which  can  no  longer  be  borne  by  the  States,  in 
order  that  in  this  way  murderous  and  disastrous  wars  may  be 
prevented  and  to  each  people  may  be  assured,  in  the  just  con- 
fines, the  independence  and  integrity  of  its  own  territory. 

And  once  this  League  among  the  nations  is  founded  on  the 
Christian  law  in  all  that  regards  justice  and  charity,  the  Church 
will  surely  not  refuse  it  valid  aid,  inasmuch  as  being  itself  the 
most  perfect  type  of  universal  society;  through  its  very  essence 
and  its  aims  it  has  wonderful  power  for  bringing  this  brotherhood 
among  men,  not  only  for  their  eternal  salvation  but  also  for  their 
material  well-being ;  it  leads  them,  that  is,  through  temporal  hap- 
piness so  as  not  to  lose  the  eternal.  Indeed  we  know  from  history 
that  when  the  spirit  of  the  Church  pervaded  the  ancient  and 
barbarous  nations  of  Europe,  little  by  little  the  many  and  varied 
differences  that  divided  them  disappeared;  in  time  they  joined 
together  in  a  homogeneous  society  from  which  originated 
modern  Europe,  under  the  guidance  and  auspices  of  the  Church, 
while  it  preserved  for  each  nation  its  own  characteristics  cul- 
minated in  a  compact  unity  bringing  prosperity  and  greatness. 
Well  does  St.  Augustine  say  in  this  regard :  ''This  celestial  city, 
while  in  exile  here  on  earth,  calls  to  itself  citizens  of  every 


316  STATE   AND   CHURCH 

nation  and  forms  out  of  all  the  peoples  one  sole  pilgrim  society; 
no  thought  is  had  of  differences  in  customs,  laws,  and  institu- 
tions; everything  which  tends  to  the  conquest  and  maintenance 
of  peace  on  earth  the  Church,  far  from  repudiating  and  destroy- 
ing, jealously  preserves;  for  however  these  things  may  vary 
among  the  nations,  they  are  all  directed  to  the  same  end  of 
peace  on  earth  as  long  as  they  do  not  hinder  the  exercise  of 
the  religion  which  teaches  adoration  of  the  one  supreme  true 
God." 

And  the  same  holy  teacher  thus  spoke  to  the  Church: 
"Citizens,  peoples,  and  all  men,  recalling  their  common  origin 
thou  shalt  not  only  unite  among  themselves  but  shalt  make  them 
brothers. ' ' 

We  meanwhile,  coming  back  to  what  we  said  at  the  beginning, 
turn  affectionately  to  all  our  children  and  conjure  them  in  the 
name  of  Our  Lord  Jesus  Christ  to  forget  mutual  differences  and 
offenses  and  draw  together  in  the  embrace  of  Christian  charity 
before  which  there  are  no  strangers;  and  we  fervently  exhort, 
too,  all  the  nations  that  under  the  influence  of  Christian 
benevolence  they  establish  a  true  peace  among  themselves  and 
join  together  in  one  single  alliance  which,  under  the  auspices 
of  justice,  will  be  lasting;  and  finally  we  appeal  to  all  the  men 
and  all  the  peoples  of  the  earth  to  adhere  in  mind  and  heart  to 
the  Catholic  Church  and  through  the  Church  to  Christ  the 
Redeemer  of  the  human  race,  so  that  we  may  address  to  them 
in  very  truth  the  words  of  St.  Paul  to  the  Ephesians:  "But 
now  in  Christ  Jesus  you  who  sometime  were  afar  off  are  made 
nigh  by  the  Blood  of  Christ.  For  He  is  our  peace  who  hath 
made  both  one,  and  breaking  down  the  middle  wall  of  parti- 
tion .  .  .  killing  the  enmities  in  Himself.  And  coming  he 
preached  peace  to  you  that  were  afar  off  and  peace  to  them  that 
were  nigh." 

Nor  less  appropriate  are  the  words  which  the  same  Apostle 
addressed  to  the  Colossians:  "Lie  not  one  to  another:  stripping 
yourselves  of  the  old  man  with  his  deeds  and  putting  on  the 
new,  him  who  is  renewed  unto  knowledge  according  to  the  image 
of  Him  who  created  him.     Where  there  is  neither  Gentile  nor 


INTERNATIONAL  RECONCILIATION  317 

Jew,  circumcision  nor  uncircumcision,  Barbarian  nor  Scythian, 
bond  nor  free.     But  Christ  is  all  in  all." 

Meanwhile,  trusting  in  the  protection  of  the  Virgin  Immac- 
ulate who  not  long  ago  We  directed  should  be  universall}^  invoked 
as  "Queen  of  Peace,"  as  also  in  that  of  the  three  new  Saints, 
We  humbly  implore  the  Divine  Spirit  the  Paraclete  that  He  may 
"graciously  grant  to  the  Church  the  gift  of  unity  and  peace" 
and  with  even  further  outpouring  of  charity  for  the  common 
salvation  may  renew  the  face  of  the  earth.  As  harbinger  of 
these  celestial  gifts  and  as  pledge  of  Our  paternal  benevolence, 
We  impart  with  all  Our  heart  to  you,  Venerable  Brethren,  to  all 
your  clergy  and  people,  the  Apostolic  Benediction. 

Given  in  Rome  at  St.  Peter's  the  23d  day  of  May,  the  solemnity 
of  Pentecost  1920,  the  sixth  year  of  Our  Pontificate. 


18.     NATIONAL    AND    INTERNATIONAL   RELATIONS 

Extracts  from  the  Pastoral  Letter  of  the  American  Hierarchy, 

February,  1920. 

National  Conditions 

Our  country  had  its  origin  in  a  struggle  for  liberty.  Once 
established  as  an  independent  Republic,  it  became  the  refuge 
of  those  who  preferred  freedom  in  America  to  the  conditions 
prevailing  in  their  native  lands.  Differing  widely  in  culture, 
belief,  and  capacity  for  self-government,  they  had  as  their 
common  characteristics  the  desire  for  liberty  and  the  pursuit 
of  happiness.  Within  a  century,  those  diverse  elements  had 
been  formed  together  into  a  nation,  powerful,  prosperous,  and 
contented.  As  they  advanced  in  fortune,  they  broadened  in 
generosity;  and  to-day,  the  children  of  those  early  refugees  are 
restoring  the  breath  of  life  to  the  peoples  of  Europe. 

These  facts  naturally  inspire  us  with  an  honest  pride  in  our 
country,  with  loyalty  to  our  free  institutions  and  confidence  in 
our  future.  They  should  also  inspire  us  with  gratitude  to  the 
Giver  of  all  good  gifts,  who  has  dealt  so  favorably  with  our 
nation:  ''He  hath  not  done  in  like  manner  to  every  nation" 
(Ps.  cxlvii).  Our  forefathers  realized  this,  and  accordingly 
there  is  evident  in  the  foundation  of  the  Republic  and  its  first 
institutions,  a  deep  religious  spirit.  It  pervades  the  home, 
establishes  seats  of  learning,  guides  the  deliberation  of  law- 
making bodies.  Its  beneficent  reisults  are  our  inheritance;  but 
to  enjoy  this  and  transmit  it  in  its  fullness  to  posterity,  we  must 
preserve  in  the  hearts  of  the  people  the  spirit  of  reverence  for 
God  and  His  law,  which  animated  the  founders  of  our  nation. 
Without  that  spirit,  there  is  no  true  patriotism;  for  whoever 
sincerely  loves  his  country,  must  love  it  for  the  things  that 

318 


NATIONAL  AND  INTERNATIONAL  RELATIONS     319 

make  it  worthy  of  the  blessings  it  has  received  and  of  those  for 
which  it  may  hope  through  God's  dispensation. 

We  are  convinced  that  our  Catholic  people  and  all  our  citizens 
will  display  an  equally  patriotic  spirit  in  approaching  the  tasks 
which  now  confront  us.  The  tasks  of  peace,  though  less  sT)ec- 
tacular  in  their  accomplishment  than  those  of  war,  are  not  less 
important  and  surely  not  less  ditScult.  They  call  for  wise  de- 
liberation, for  self-restraint,  for  promptness  in  emergency  and 
energy  in  action.  They  demand,  especially,  that  our  people 
should  rise  above  all  minor  considerations  and  unite  their  en- 
deavors for  the  good  of  the  country.  At  no  period  in  our 
history,  not  even  at  the  outbreak  of  war,  has  the  need  of  unity 
been  more  imperative.  There  should  be  neither  time  nor  place 
for  sectional  division,  for  racial  hatred,  for  strife  among  classes, 
for  purely  partisan  conflict  imperiling  the  country's  welfare. 
There  should  be  no  toleration  for  movements,  agencies,  or  schemes 
that  aim  at  fomenting  discord  on  the  ground  of  religious  belief. 
All  such  attempts,  whatever  their  disguise  or  pretext,  are 
inimical  to  the  life  of  our  nation.  Their  ultimate  purpose  is 
to  bring  discredit  upon  religion,  and  to  eliminate  its  influence 
as  a  factor  in  shaping  the  thought  or  the  conduct  of  our  people. 
We  believe  that  intelligent  Americans  will  understand  how 
foreign  to  our  ideas  of  freedom  and  how  dangerous  to  freedom 
itself,  are  those  designs  which  would  not  only  invade  the  rights 
of  conscience  but  would  make  the  breeding  of  hatred  a  con- 
scientious duty. 

CARE  FOR  IMMIGRANTS 

Such  movements  are  the  more  deplorable  because  they  divert 
attention  from  matters  of  public  import  that  really  call  for 
improvement,  and  from  problems  whose  solution  requires  the 
earnesi;  co-operation  of  all  our  citizens.  There  is  much  to  be 
done  in  behalf  of  those  who,  like  our  forefathers,  come  from 
other  countries  to  find  a  home  in  America.  They  need  an  educa- 
tion that  will  enable  them  to  understand  our  system  of  govern- 
ment and  will  prepare  them  for  the  duties  of  citizenship.  They 
need  warning  against   the  contagion   of  influences  whose   evil 


320  STATE   AND   CHURCH 

results  are  giving  us  grave  concern.  But  what  they  chiefly 
need  is  that  Christian  sympathy  which  considers  in  them  the 
possibilities  for  good  rather  than  the  present  defects,  and,  in- 
stead of  looking  upon  them  with  distrust,  extends  them  the  hand 
of  charity.  Since  many  of  their  failings  are  the  consequence 
of  treatment  from  which  they  suffered  in  their  homelands,  our 
attitude  and  action  toward  them  should,  for  that  reason,  be  all 
the  more  sympathetic  and  helpful. 

CLEAN    POLITICS 

The  constant  addition  of  new  elements  to  our  population 
obliges  us  to  greater  vigilance  with  regard  to  our  internal  aifairs. 
The  power  of  assimilation  is  proportioned  to  the  soundness  of 
the  organism;  and  as  the  most  wholesome  nutriment  may  prove 
injurious  in  case  of  functional  disorder,  so  will  the  influx  from 
other  countries  be  harmful  to  our  national  life,  unless  this  be 
maintained  in  full  vigor.  While,  then,  we  are  solicitous  that 
those  who  seek  American  citizenship  should  possess  or  speedily 
attain  the  necessary  qualifications,  it  behooves  us  to  see  that 
our  political  system  is  healthy.  In  its  primary  meaning,  politics 
has  for  its  aim  the  administration  of  government  in  accordance 
with  the  express  will  of  the  people  and  for  their  best  interests. 
This  can  be  accomplished  by  the  adoption  of  right  principles, 
the  choice  of  worthy  candidates  for  office,  the  direction  of 
partisan  effort  toward  the  nation's  true  welfare  and  the  purity 
of  election;  but  not  by  dishonesty.  The  idea  that  politics  is 
exempt  from  the  requirements  of  morality,  is  both  false  and 
pernicious;  it  is  practically  equivalent  to  the  notion  that  in 
government  there  is  neither  right  nor  wrong,  and  that  the  will 
of  the  people  is  simply  an  instrument  to  be  used  for  private 
advantage. 

The  expression  or  application  of  such  views  accounts  for  the 
tendency,  on  the  part  of  many  of  our  citizens,  to  hold  aloof  from 
politics.  But  their  abstention  will  not  effect  the  needed  reform, 
nor  will  it  arouse  from  their  apathy  the  still  larger  number  who 
are  so  intent  upon  their  own  pursuits  that  they  have  no  inclina- 
tion for  political  duties.     Each  citizen  should  devote  a  reason- 


NATIONAL  AND  INTERNATIONAL  RELATIONS     321 

able  amount  of  time  and  energy  to  the  maintenance  of  right 
government  by  the  exercise  of  his  political  rights  and  privileges. 
He  should  understand  the  issues  that  are  brought  before  the 
people,  and  co-operate  with  his  fellow-citizens  in  securing,  by 
all  legitimate  means,  the  wisest  possible  solution. 


PUBLIC    OFFICE    AND    LEGISLATION 

In  a  special  degree,  the  sense  and  performance  of  duty  is 
required  of  those  who  are  entrusted  with  public  office.  They 
are  at  once  the  servants  of  the  people  and  the  bearers  of  an 
authority  whose  original  source  is  none  other  than  God. 
Integrity  on  their  part,  shown  by  their  impartial  treatment  of 
all  persons  and  questions,  by  their  righteous  administration  of 
public  funds  and  by  their  strict  observance  of  law,  is  a  vital 
element  in  the  life  of  the  nation.  It  is  the  first  and  most 
effectual  remedy  for  the  countless  ills  which  invade  the  body 
politic  and,  slowly  festering,  end  in  sndden  collapse.  But  to 
apply  the  remedy  with  hope  of  success,  those  who  are  charged 
with  the  care  of  public  aiTairs,  should  think  less  of  the  honor 
conferred  upon  them  than  of  the  great  responsibility.  For  the 
public  official  above  all  others,  there  is  need  to  remember  the 
day  of  accounting,  here,  perhaps,  at  the  bar  of  human  opinion, 
but  surely  hereafter  at  the  judgment  seat  of  Him  whose  sentence 
is  absolute:  "Give  an  account  of  thy  stewardship" 
(Luke  xvi,  2). 

The  conduct  of  one's  own  life  is  a  serious  and  often  a  dif- 
ficult task.  But  to  establish,  by  the  use  of  authority,  the  order 
of  living  for  the  whole  people,  is  a  function  that  demands  the 
clearest  perception  of  right  and  the  utmost  fidelity  to  the  prin- 
ciples of  justice.  If  the  good  of  the  country  is  the  one  true 
object  of  all  political  power,  this  is  pre-eminently  true  of  the 
legislative  power.  Since  law,  as  the  means  of  protecting  right 
and  preserving  order,  is  essential  to  the  life  of  the  State,  justice 
must  inspire  legislation,,  and  concern  for  the  public  weal  must 
furnish  the  single  motive  for  enactment.  The  passing  of  an 
unjust  law  is  the  suicide  of  authority. 

The  efficacy  of  legislation  depends  on  the  wisdom  of  laws, 


322  STATE  AND   CHURCH 

not  on  their  number.  Fewer  enactments,  with  more  prudent 
consideration  of  each  and  more  vigorous  execution  of  all,  would 
go  far  towards  bettering  our  national  conditions.  But  when 
justice  itself  is  buried  under  a  multiplicity  of  statutes,  it  is  not 
surprising  that  the  people  grow  slack  in  observance  and  even- 
tually cease  to  respect  the  authority  back  of  the  laws.  Their 
tendency  then  is  to  assume  the  function  which  rightly  belongs 
to  public  executive  power,  and  this  they  are  more  likely  to  do 
when  aroused  by  the  commission  of  crimes  which,  in  their  opin- 
ion, demand  swift  retribution  instead  of  the  slow  and  uncertain 
results  of  legal  procedure.  The  summar}^  punishment  visited 
on  certain  offences  by  those  who  take  the  law  into  their  own 
hands,  may  seem  to  be  what  the  criminal  deserves;  in  reality,  it 
is  a  usurpation  of  power  and  therefore  an  attack  upon  the  vital 
principle  of  public  order.  The  tardiness  of  justice  is  surely 
an  evil,  but  it  will  not  be  removed  by  added  violations  of  jus- 
tice, in  which  passion  too  often  prevails  and  leads  to  practices 
unworthy  of  a  civilized  nation. 


INTERNATIONAL    RELATIONS 

Though  men  are  divided  into  various  nationalities  by  reason 
of  geographical  position  or  historical  vicissitude,  the  progress  of 
civilization  facilitates  intercourse  and,  normally,  brings  about 
the  exchange  of  good  offices  between  people  and  people.  War,  for 
a  time,  suspends  these  friendly  relations,  but  eventually  it  serves 
to  focus  attention  upon  them  and  to  emphasize  the  need  of  re- 
adjustment. Having  shared  in  the  recent  conflict,  our  country  is 
now  engaged  with  international  problems  and  with  the  solution 
of  these  on  a  sound  and  permanent  basis.  Such  a  solution, 
however,  can  be  reached  only  through  the  acceptance  and  appli- 
cation of  moral  principles.  Without  these,  no  form  of  agree- 
ment will  avail  to  establish  and  maintain  the  order  of  the  world. 

Since  God  is  the  Ruler  of  nations  no  less  than  of  individuals. 
His  law  is  supreme  over  the  external  relations  of  States  as  well 
as  in  the  internal  affairs  of  each.  The  sovereignty  that  makes 
a  nation  independent  of  other  nations,  does  not  exempt  it  from 
its   obligations  toward   God;   nor   can   any  covenant,   however 


NATIONAL  AND  INTERNATIONAL  RELATIONS     323 

shrewdly  arranged,  guarantee  peace  and  security,  if  it  disregard 
the  divine  commands.  These  require  that  in  their  dealings  with 
one  another,  nations  shall  observe  both  justice  and  charity.  By 
the  former,  each  nation  is  bound  to  respect  the  existence,  in- 
tegrity and  rights  of  all  other  nations;  by  the  latter,  it  is 
obliged  to  assist  other  nations  with  those  acts  of  beneficence 
and  good  will  which  can  be  performed  without  undue  incon- 
venienee  to  itself.  From  these  obligations  a  nation  is  not  dis- 
pensed by  reason  of  its  superior  civilization,  its  industrial 
activity  or  its  commercial  enterprise ;  least  of  all,  by  its  military 
power.  On  the  contrary,  a  State  which  possesses  these  advan- 
tages, is  under  a  greater  responsibility  to  exert  its  influence  for 
the  maintenance  of  justice  and  the  diffusion  of  good  will  among 
all  peoples.  So  far  as  it  fulfils  its  obligation  in  this  respect, 
a  State  contributes  its  share  to  the  peace  of  the  world;  it  dis- 
arms jealousy,  removes  all  ground  for  suspicion  and  replaces 
intrigue  with  frank  co-operation  for  the  general  welfare. 

The  growth  of  democracy  implies  that  the  people  shall  have 
a  larger  share  in  determining  the  form,  attributions,  and  policies 
of  the  government  to  which  they  look  for  the  preservation  of 
order.  It  should  also  imply  that  the  calm,  deliberate  judgment 
of  the  people,  rather  than  the  aim®  of  the  ambitious  few,  shall 
decide  whether,  in  case  of  international  disagreement,  war  be 
the  only  solution.  Knowing  that  the  burdens  of  war  will  fall 
most  heavily  on  them,  the  people  will  be  slower  in  taking  ag- 
gressive measures,  and,  with  an  adequate  sense  of  what  charity 
and  justice  require,  they  will  refuse  to  be  led  or  driven  into 
conflict  by  false  report  or  specious  argument.  Reluctance  of 
this  sort  is  entirely  consistent  with  firmness  for  right  and  zeal 
for  national  honor.  If  it  were  developed  in  every  people,  it 
would  prove  a  more  effectual  restraint  than  any  craft  of  diplo- 
macy or  economic  prudence.  The  wisest  economy,  in  fact,  would 
be  exercised  by  making  the  principles  of  charity  and  justice  an 
essential  part  of  education.  Instead  of  planning  destruction, 
intelligence  would  then  discover  new  methods  of  binding  the 
nations  together ;  and  the  good  will  which  is  now  doing  so  much 
to  relieve  the  distress  produced  by  war,  would  be  so  strengthened 
and  directed  as  to  prevent  the  recurrence  of  international  strife. 


324  STATE   AND   CHURCH 

One  of  the  most  effectual  means  by  which  States  can  assist  one 
another,  is  the  organization  of  international  peace.  The  need  of 
this  is  more  generally  felt  at  the  present  time  when  the  meaning 
of  war  is  so  plainly  before  us.  In  former  ages  also,  the  nations 
realized  the  neces-s-ity  of  compacts  and  agreements  whereby  the 
peace  of  the  world  would  be  secured.  The  success  of  these 
organized  efforts  was  due,  in  large  measure,  to  the  influence  of 
the  Church.  The  position  of  the  Holy  See  and  the  office  of 
the  Sovereign  Pontiff  as  Father  of  Christendom,  were  recognized 
by  the  nation.s'  as  powerful  factors  in  any  undertaking  that  had 
for  its  object  the  welfare  of  all.  A  ''Truce  of  God"  was  not 
to  be  thought  of  without  the  Vicar  of  Christ ;  and  no  other  truce 
could  be  of  lasting  effect.  The  Popes  have  been  the  chief  ex- 
ponents, both  by  word  and  act,  of  the  principles  which  must 
underlie  any  successful  agreement  of  this  nature.  Again  and 
again  they  have  united  the  nations  of  Europe,  and  history 
records  the  great  services  which  they  rendered  in  the  field  of 
international  arbitration  and  in  the  development  of  international 
law. 

The  unbroken  tradition  of  the  Papacy  with  respect  to  inter- 
national peace,  has  been  worthily  continued  to  the  present  by 
Pope  Benedict  XV.  He  not  only  made  all  possible  efforts  to 
bring  the  recent  war  to  an  end,  but  was  also  one  of  the  first 
advocates  of  an  organization  for  the  preservation  of  peace.  In 
his  Letter  to  the  American  people  on  the  last  day  of  the  year, 
1918,  the  Holy  Father  expressed  his  fervent  hope  and  desire  for 
an  international  organization,  "which  by  abolishing  conscrip- 
tion will  reduce  armaments,  by  establishing  international  tri- 
bunals will  eliminate  or  settle  disputes,  and  by  placing  peace 
on  a  solid  foundation  will  guarantee  to  all  independence  and 
equality  of  rights."  These  words  revealed  the  heart  of  the 
Father  whose  children  are  found  in  every  nation,  and  who 
grieves  at  the  sight  of  their  fratricidal  struggle.  That  they 
were  not  then  heeded  or  even  rightly  understood,  is  but  another 
evidence  of  the  degree  to  which  the  passions  aroused  by  the  con- 
flict had  warped  the  judgment  of  men.  But  this  did  not  pre- 
vent the  Pontiff  from  intervening  in  behalf  of  those  who  were 
stricken  by  the  fortunes  of  war,  nor  did  it  lessen  his  determina- 


NATIONAL  AND  INTERNATIONAL  RELATIONS     325 

tion  to  bring  about  peace.  To  him  and  to  his  humane  endeavor, 
not  Catholics  alone,  but  people  of  all  creeds  and  nationalities, 
are  indebted  for  the  example  of  magnanimity  which  he  gave 
the  whole  world  during  the  most  fateful  years  of  its  history. 

THE  END 


INDEX 


Acton,  Lord,  History  of  Freedom  and 
other    Essays,    101,    145,    196,    197. 

Adams,  John  Quincy,  99,  109,  110, 
137. 

American   Constitution,   149. 

Amette,    Cardinal,    273. 

Anti-Bellarmine   Colleges,    115. 

Aristotle,  68,  77,  78,  79,  82,  155,  167, 
257 ;  on  popular  sovereignty,  77,  78, 
79;  Politics,  77,  78,  79,  87,  88,  90. 

Augustus  Triumphus,  44. 

Austin,  John,  40,  125,  158,  252; 
Lecture    on   Jurisprudence,    200. 

Austinian  Theory,  39,  150,  200. 

Bacon,  125. 

Baltimore,  Lord,   285. 

Bancroft,    Archbishop,    123. 

Barbarossa,    Frederick,    111. 

Barber,   Francis,   160. 

Beard,  Charles  A.,  An  Economic 
Interpretation  of  the  Constitution 
of  the  United  States,  166. 

Beattie,  155 ;  Essay  on  the  Immuta- 
bility of  Truths,  156. 

Bellarmine,  113,  115,  116,  133,  136, 
161,  162,  173,  175,  177;  Apology, 
116;  De  Controversiis,  115,  117;  De 
Laicis,  96,  115,  134;  De  Summo 
Pontifice,  120;  denial  of  Divine 
Right,  178. 

Benedict  XV,  29,  325;  Encyclical  on 
International  Fe  conciliation,  309- 
317 ;  on  protection  of  morals  and 
religion,   229. 

Bentham,    125,    158,    174,    183. 

Berkley,    156. 

Bill  of  Rights,  186. 

Billot,  Cardinal,  on  origin  of  civil 
authority,  62-67. 

Bismarck,   145. 

Blackstone,  168,  169,  170. 

Blair,    Hugh,    154. 

Bodin,  Jean,  112;  on  the  patriarchal 
state,  90. 

Bolingbroke,  132;   Patriot  King,  172. 

Boniface  VIII,  114;  Bull  "  Unam 
Sanctam,"  48. 


Bouquillon,  252;  Theologia  Moralis 
Fundamentalis,  245,  267. 

Boudinot,  Elias,  160. 

Bracton,   123. 

Brown,  Alexander,  The  First  Repub- 
lic in  America,  128. 

Broven,  Sir  Thomas,  Beligio  Medici, 
133. 

Bryce,  Viscount,  159 ;  Modern  Democ- 
racies, 148 ;  on  natural  law,  105. 

Buffier,  178;  Traite  De  Premieres 
Verites,  156. 

Burgess,    201. 

Burke,  125,  126,  150,  151,  153,  161, 
163,  171,  178,  179;  Address  to  the 
King,  170 ;  Appeal  from  the  New  to 
the  Old  Whigs,  103,  177;  corre- 
spondence, 137;  Fragments  of  a 
Tract  of  Popery  Laws,  121,  122, 
139;  on  liberty,  146,  147;  Progress 
of  Science  Relative  to  Law  and 
Government,  126;  Reflections  on 
the  French  Revolution,  99,  141 ; 
Thoughts  on  the  Cause  of  the  Pres- 
ent Discontents,  138,  170. 

Burlemaqui,   167. 

Butler,  142. 

Calvin,   115,  130,  162. 

Campbell,  Lives  of  the  Chief  Justices, 

125;    Philosophy   of  Rhetoric,   156. 
Campion,   133. 
Carlyle,  A.  J.,  117,  118,  148;  History 

of  Medieval  Political  Theory,  109 ; 

on  liberty,  145. 
Castelein,  Philosophia  Moralis  et  Soci- 

alis,  224. 
Catholic  Participation  in  Politics,  23, 

60,  61. 
Catholic  State,  35. 
Catholicism    and    Americanism,    282- 

298. 
Cathrein,    Philosophia    Moralis,    224. 
Charles  I,  123,  136. 
Christian  Citizenship,  265. 
Christian  Constitution  of  States,  1-25 
Church    and    Labor,     Ryan-Husslein, 

232. 


327 


328 


INDEX 


Church  and  State,  comparative  dig- 
nity of,  6,  39;  state's  attitude 
toward    church,   4,    32-39. 

Church   as  Civil  Ruler,   7,   41. 

Church  Rights  Denied  by  State,  14,  52. 

Cicero,  140,  167;  Be  Offlciis,  101; 
Morals,  132. 

Civil  Authority,  moral  origin  of,  62- 
68. 

Civil  Law,  basis  of,  245-248;  moral 
obligation   of,   244-259. 

Civil  Power  of  Church,  41,  42. 

Civil    Rights,   276,    277-281. 

Civil  Society,  historic  origin  of,  79-84. 

Clarke,    131. 

Clement  V,  48. 

Coke,   Sir  Edward,   122,   123,   124, 

Combination  Acts,  211. 

"Common  good,"  204. 

Concordats,    9,    52. 

Consent   of   the   Governed,   53,   84-98. 

Constantine,  286. 

Contrat  Social,  63,  70^-75,  91,  92,  94. 

Corby,  Rev.  William,  296. 

Costa  Rosetti,  Synopsis  PhiJosophiae 
Moralis,  207. 

Cronin,  The  Science  of  Ethics,  221, 
224,  245. 

Cudworth,  130,  131,  141;  Intellectual 
System,  132. 

Cumberland,  131. 

Curtis,  G.  C.,  Constitutional  History 
of  the  United  States, 

Dante,  Convivio,  102;  Monarchic,  111. 

De  Haller,  Contrat  Social,  91,  92. 

Be  Laicis,  117. 

De  Maistre,  Joseph,  Essai  sur  le  Prin- 
cipe Generateur  des  Constitutions 
Politiques,  148,  149. 

Be  Eegimine  Principum,  110,  111. 

Descartes,  156. 

Declaration  of  Breda,  130. 

Declaration  of  Independence,  98, 
99,  100,  148,  163,  167,  174,  190,  277. 

Declaration  of  the  Rights  of  Man,  125, 
148. 

Befensio  Fidei  Catholicae,  173. 

Democracy,    28,    99-145. 

Deposition  of  Temporal  Rulers  by 
Popes,    43. 

"Der    Nationale    Machtzweck, "    199. 

Distributive   Justice,   262. 

Divine  Right  of  Kings,  26,  27,  76, 
94,   98,   127,   133,   134. 

Doleman,  133. 


Droysen,  Johann  Justav,  Outline  of 
the   Principles  of  History,   184. 

Dryden,  132;  Beligio  Laid,  133; 
History  of  the  League,  134. 

Duns  Scotus,  162. 

Duties  of  the  Citizen,  260-275, 

Elliot,  Sir  Thomas,  The  Governor,  102. 
Emerson,   R.  W.,  304. 
Encyclicals;   See  Benedict  XV,  Greg- 
ory XV,  and  Leo  XIII. 

Faber,  136. 

Federalist,   the,   163. 

Fenelon,  48;  Birection  pour  la  Con- 
science, d'un   Eoi,    103. 

Filmer,  Sir  Robert,  135,  136,  177; 
Patriarclia,    91,    134,    175. 

Forum  Judicum,  102,  103,  107. 

Fragmentum  Pragense,   109. 

France,  Church  and  State  in,  30. 

Franklin,  153. 

Freedom  of  Speech,  16,  55,  239-243. 

"French    Enlightenment,"    171,    192. 

Funetionsi  of  the  'State,  erroneous 
theories,  202-220 ;  essential  func- 
tions, 223 ;  optional  functions,  222, 
223;    proper    theories,    221-233. 

Garner,  James  W.,  Introduction  to 
Political  Science,  196,   198,  222. 

General  Welfare  Theory  of  State 
Functions,  202. 

Gooch,   G.   P.,    121,   122,    129. 

Gosselin,   48. 

Government,  forms  of,  3,  28, 

Government   Ownership,  247. 

Gregory   VII,   111. 

Gregory  XVI,  Mirari  Vos,  17. 

Grotius,  167,  183;  Be  Jure  Belli  et 
Pads,    135. 

Guillaume    de   Rochfort,    112. 

Guizot,  158 ;  on  liberty,  145 ;  Repre- 
sentative Government,  102,  103. 

Hamilton,  Alexander,  132,  146,  150, 
153,  160,  161,  163-167,  180,  181, 
185,  187,  193,  194.  Letters  from 
Phocion,  152 ;  The  Farmer  Refuted, 
159,  175;  Alexander  Hamilton,  by 
H.  Jones  Ford,  160. 

Hegel,  203 ;  conception  of  the  omnip- 
otent state,  39,  198. 

Henry  IV  of  Germany,  111, 

Henry  of  Segusia,  44, 

Hergenroether,  Catholic  Church  and 
Christian  State,   48,  49, 


INDEX 


329 


Hill,   David  Jayne,   166. 
Hillquit-Ryan,   Socialism,  Promise   or 

Menace?  217. 
Hobbes,  76,   125,  130,   131,   132,  140, 

146,   159,   168. 
Holt,  An  Introduction  to  the  Study  of 

Government,  222. 
Hooker,   Richard,    128;    Ecclesiastical 

Polity,   103. 
Hume,    Henry,    125,    157,    158,    159; 

History  of  England,  154. 
Hunt,  Gaillard,  161,  175,  176. 
Hus3,   115. 
Hutcheson,  155,   158. 

Immigrants,  care  of,  319,  320. 
Independence  of  State,  7,  42. 
Individualistic  Theory  of  State  Tunc- 

tions,   202-217. 
Industrial  Regulation  by  State,  230- 

233. 
Intention   of  Legislator,   249-253. 
International  Reconciliation,  309-317. 
International  Relations,  322-335. 
Ireland,   Archbishop,    282-298. 
Isadora  of  Seville,   106,   107,   110. 
lus  Gentium,  105,  106. 
Ivo   of  Chartres,   110. 

I 

James  I  of  England,  27,  134;  con- 
troversy with  Bellarmine,  122 ;  on 
the  Jesuits,  128,  129;  Political 
Works  of,  26;  Premonition  to  all 
Most  Mightie  Monarches,  Kings, 
Free  Princes,  and  States  of  Christ- 
endome,   115. 

James  II,  136. 

Janet,  Paul,  77;  Histoire  de  la 
Science  Politique,  118;  on  popular 
sovereignty,   75. 

Jefferson,  148,  161,  162,  174,  175, 
176,  Memoir,  153;  on  the  Declar- 
ation of  Independence,  167. 

Jesuit  Doctrines  on  Government,  122, 

Jingoism,  266. 

Joint   Jurisdiction,    8,   49. 

Juridical  Origin  of  Civil  Society,  84- 
98. 

Kaimes,  Lord,  STcetches  of  the  His- 
tory  of  Man,   157. 

Kant,  Immanuel,  142 ;  on  individual- 
ist theory,  210,  211,  212,  216,  217. 

Kjiox,  Hugh,  An  Address  to  America 
by  a  Friend  in  a  Foreign  Govern- 
ment,  160. 


La  Boetie,  Be  la  Servitude  Volon- 
taire,  158. 

Lactantius,  106,  107,  108. 

Laissez-faire,   209,   262. 

Laski,  Harold  J.,  43;  on  State  omnip- 
otence, 41. 

Law  and  Liberty,  234-243. 

League  of  Nations,  315. 

Lecky,  History  of  European  Morals, 
142;  on  Jesuits,  113,  121. 

Leo  XIII,  1-25,  26,  28,  29,  30,  31, 
32,  37,  39,  40,  42,  49,  52,  53,  54, 
55,  195,  207,  219,  232,  286,  298; 
Au  Mileu  des  Sollicitudes,  66,  67; 
Catholicity  in  the  United  States,  33 ; 
Christian  Constitution  of  States, 
1-25,  244;  Diuturnum  Illud,  63; 
Lihertas  Praestantissimum,  234- 
243;  on  Human  Liberty,  58;  on 
the  Condition  of  Labor,  204,  231, 
233,  261,  262. 

Liberty,  religious,  38;  of  conscience, 
243;  of  the  press,  239;  of  self -ruin, 
19;  of  speech,  239;  of  teaching, 
240. 

Lieber,  Francis,  Civil  Liberty  and 
Self-Government,    101,    182,    183. 

Lige  in  France,  103. 

Lilly,  First  Principles  in  Politics, 
224. 

Lingard,  History  of  Anglo  Saxon 
Church,    102. 

Locke,  125,  126,  137,  156,  161,  163, 
167,  176,  186;  Second  Treatise  of 
Civil  Government,  74;  Two  Treat- 
ises on  Government,  134-136. 

Louis  XIV,  136. 

Lowell,  James  Russell,  149. 

Loyalty,  264,  265. 

Luther,  115,  130,  162;  Letter  on  the 
Federal  Convention,  187. 

MacKintosh,  Sir  James,  136. 

Machiavelli,  112,  114,  130,  201. 

Macksey,  Charles  B.,  68-98. 

Madison,  146,  153,  154,  160,  161,  162, 
163,    175,    190. 

Magna   Charta,   123,   124,   186. 

INIaimbourg,  History  of  the  League, 
134. 

Maine,  Sir  Henry,  150 ;  Ancient  Law, 
148;    Popular  Government,  149. 

Maitland,  183;  History  of  English 
Law,   110. 

Manning,  Cardinal,  the  Vatican  De- 
crees and  their  Bearing  on  Civil 
Allegiance,  48. 


330 


INDEX 


Mariana,  133. 

Marsiglio   of   Padua,    114. 

Mason,    George,    176. 

Mazzini,   on   liberty,   145. 

Medieval  Inheritance  of  Liberty, 
166-194. 

Metternich,  145. 

Meyer,  Theodore,  Institutiones  Juris 
Naturalis,  198,  224,  232,  251. 

Michael  de   L 'Hospital,   103. 

Middle  Ages,  church  and  state  in, 
34;  deposing  power  in,  45;  tolera- 
tion in,  35. 

Military    Service,    duty    of,    269,    270. 

Mill,  J.  S.,  142. 

Millar,  John,  125;  Historical  View 
of  the  English  Government  from 
the  Settlement  of  the  Saxons  in 
Britian  to  the  Revolution  of  1688, 
154. 

Milton,  129,  132;  Treatise  of  Civil 
Power  in  Ecclesiastical  Causes, 
158. 

Minimum   Standards   of   Living,    262. 

Molina,  133. 

Montesquieu,  167,  187,  188;  L' esprit 
des  Lois,  158. 

Moral  Authority  of  Governments,  3, 
26. 

National   Relations,   318-322. 
Natural  Law,  143,  235. 
Natural  Eights,  276,  277-281. 
Naturalism,    24. 
Navarrus,    173. 
Noldin,  275. 

Obedience,    civil,   263,    264. 

Paine,    Thomas,    137. 

Parsons,    133. 

Pastoral     Letter     of     the     American 

Hierarchy,    27,    30,    227,    228,    237, 

238,  318-325. 
Patriotism,   299-308. 
Paulus,  on  penal  laws,  140. 
Penal  Laws,  253-256. 
Pendleton,    176. 
Penn,  William,  285. 
"Petition  of  Right,"  123,  124. 
Phelps,  Anson,  289. 
Philip  the  Fair,  114. 
Philippe  de  Commines,  Memoirs,  111, 

112. 
Physiocrats,  209. 
Pius  IX,   17,  18,  37. 
Pluralistic  State,  201. 


Pohle,  34,  38. 

Politics,  duty  of,  320,  321. 

Pollard,    A.    F.,    125;     Evolution    of 

Parliament,  107. 
Pollock,    History     of    English    Law, 

110. 
Pope,  Alexander,   132. 
Popular   Acceptance,    256-259. 
Popular     Determination     of     Govern- 
ment, 64. 
Power,   on  principle  of  consent,   127 ; 

on  principle  of  utility,  127. 
Pot,   Philippe,    112. 
"Practical   Liberty,"    145-165, 
Price,   137,   188. 
Priestly,  137. 
Primary    Functions    of    State,    224- 

226. 
' '  Private   Judgment, ' '   157. 
Private   Property,  right  to,   278,  279. 
Protestant  Reformation,  32. 
Public   Charity,   228,   229. 
Public  Education,  227. 
Public   Health,   229,   230. 
Public   Office,   321,   322. 
Public     Profession     of     Religion     by 

State,  4,   29. 
Public    Protection     of    Religion    and 

Morals,  19,  60,  229,  230. 
Public  Works,  226. 
Puffendorf,   167,   183. 

Quasi-Contract,   137,   138. 

Rationalism,   24. 

Regulation   of   Commerce,   230. 

Reid,   155 ;    Inquiry   into   the  Human 

Mind,  156. 
Reynolds,  Sir  Joshua,  156. 
Rights   of  Citizens,    276-281. 
Ritchie,  David  G.,  148. 
Rives,    William    E.,    Life    and    Times 

of  Madiso7i,  155. 
Rousseau,  100,  125,  126,  137,  161,  171, 

186,  190,  191;  Social  Contract,  70- 

75,  92,  94. 

Saint  Ambrose,   104,   106. 

Saint  Augustine,  19,  102,  106,  309; 
on  consent  of  the  governed,  76; 
on  a  political  society,  76;  Treatise 
on  the  City  of  God,  2,  102. 

Saint  John  Chrysostom,  104. 

Saint  Paul,   3,   4,  8,  73,  104,  316. 


INDEX 


331 


Saint     Thomas     Aquinas,     128,     130, 

136,    162,    245,    246;    Be   Eegimine 

Principum,  110,  111;  Summa  Theo- 

logica,  76,  77,   87. 
Sandys,   Sir  Edward,   128. 
Santarel,   133. 
Satolli,  Francis,  298. 
Schism  of  the  West,  114. 
Scholastic     doctrine     on     sovereignty, 

75,  98,  107. 
Seabury,   167. 

Selden,  John,    141;    TaUe   Talk,   129. 
Seligman,    Essays    in    Taxation,    268. 
Shaftesbury,   129,  155,   158. 
Shakespeare,  103. 
Sidney,     136,     137,     163,     167,     176; 

Discourses  Concerning  Government, 

134,  135. 
Simancha,   133. 
Small,   Dr.  William,   153. 
Smith,  Adam,  154;  Wealth  of  Nations, 

209. 
Social    Contract,    63,    70-75,    91,    92, 

94. 
Social  Eeconstruction  Program,  232. 
Socialist   Theory   of   State   Functions, 

202,  217-220. 
South    America,    relations    of    church 

and  state  in,  30. 
Sovereignty,   15,  53,  75,  92,   168-198, 

257,  258;  popular,  15,  53,  118,  119, 

see   also   Kousseau;   scholastic   doc- 
trine of,  75,  98,  107. 
Spalding,  Archbishop,  299-308. 
Spencer,  Herbert,  152,   189,  210,  211, 

212,   216,   217. 
Sa,  Emanuel,  133. 
State  Attitude  toward  Church,  4,  32, 

39. 
State,  end  of,  192-207;   functions  of, 

208-233. 
State  Management  of  Industries,  202. 
State  Omnipotence,  59,  198,  202. 
State  Ownership,  202. 
Studies  in  the  Problem  of  Sovereignty, 

Laski,  43. 
Suarez,   Francisco,   79,   113,   133,   135, 

138,    141,   154,   161,    162,   173,   181, 

182,   248,   249,   250,   252;    De  Fide, 

35;  De  Lecjihus,  118,  122,  143,  174, 

175,   184,   186,   192,   193,   233,   246; 

Defensio  Fidei  Catholicae,  118,  122; 

denial  of  Divine  Eight,  95,  178 ;  on 

sovereignty,  257,  258. 
Summa  Theologica,  76,  77,  87. 
Syllabus   of   79   Propositions,   18,   58, 

59,  60'. 


Talleyrand,  165. 

Tanquerey,  252,  255 ;  De  Justitia,  268, 
270,  271,  274. 

Taparelli,  S.  J.,  on  sovereignty,  92. 

Taxation,  ethics  of,  267-269. 

Temporal  Power  of  Church,  42. 

Tertullian,  23. 

Tiedman,  C.  J.,  The  Unwritten  Consti- 
tution of  the  United  States, 

Toledo,  Councils  of,  102. 

Toleration,  35. 

Tooke,  Home,  137. 

Tucker,  Josiah,  Treatise  Concerning 
Civil  Government,  137,  138. 

"  Two    Swords,"    doctrine    of,    48. 

Union  of  Church  and  State,  34. 
United    States,    religious    policy    of, 

31. 
Universal  Season,  198. 

Vattel,  Le  Droit  des  Gens,  119. 
Vermeersch,   Quaestiones   de  Justitia, 

260. 
Vincent    of    Lerins,    Commonitorium, 

99. 
Virginia  Declaration  of  Eights,  176. 
Vision  and  Creed  of  Piers  Ploughman, 

111,  112. 
Voltaire,   156. 

Votaries  of  Enlightenment,  163. 
Voting,  duty  of,  270-272. 

Washington,  Fareivell  Address,  193. 

Webster,  Pelatiah,  159;  A  Disserta- 
tion on  the  Political  Union  and 
Constitution  of  the  Thirteen  United 
States,   159. 

Wells,  H.  G.,  Outlines  of  History,  201. 

Winthrop,  John,  Arbitrary  Govern- 
ment Described,  132. 

William  of  Occam,  114. 

Wilson,  James,  125,  146,  153,  154, 
157,  159,  160,  161,  178,  179,  184, 
185,  186,  188,  189;  Considerations 
on  the  Nature  and  Extent  of  the 
Legislative  Authority  of  the  British 
Parliament,  148,  171,  173,  174,  175; 
on  popular  sovereignty,  118,  119; 
Speech  in  the  Convention  for  the 
Province  of  Pennsylvania,  172,  173. 

Witherspoon,  John,  100,  155. 

Wycliffe,   115. 

Zigliara,  Cardinal,  on  consent  of  the 
governed,  95. 


lie  SOUTHtKN  HtOIONAt  LlfiRAR/f  AULll  i' 


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